UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


N,  ■  ^ 


siIlection 


OF 


LEADING    CASES, 


ON 


VARIOUS  BRANCHES  OF  THE  LAW : 

WITH  NOTES. 

BY 

JOHN  WILLIAM  SMITH,  ESa. 

OF  THE  INNER  TEMPLE,  BARRISTER  AT  LAW. 


:  Ii  is  ever  good  to  relie  upon  the  book  at  large  ;  for  many  times  Comfmaiasv.a  dispendia,  and 
melius  estpetcre  foiites  quuni  scctari  rivulofi."—!  Inst.  dUo,  b. 


STfjfrt  3lnto  3lifaratB,  ftom  tijc  3la.<5t  3Lo\xtio\i  IStiition. 

WITH  ADDITIONAL  NOTES, 
AND  REFERENCES  TO  AMERICAN  DECISIONS, 

BY 

J.  I.  CLARK  HARE,  and  H.  B.  WALLACE,  Es(iRs., 

OF  THE  PHILADELPHIA  BAR. 


IN    TWO   VOLUMES.  — VOL.   I. 


PHILADELPHIA: 

T.    &   J.   W.    JOHNSON, 

LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 
197  CHESNUT  STREET. 

1847. 


"«l 


T 


Entered,  according  to  Act  of  Congress,  in  the  year  1844,  by 

JOHN    S.    LITTELL, 

In  the  Clerk's  Office  of  the  District  Court  of  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1847,  by 

T.  &  J.  W.  J  O  H  N  S  O  N, 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Eastern  District  of  Pennsylvania. 

I — yL  ClA^ 


y//  A*^^ 


ADVERTISEMENT 

TO  THE  THIRD  EDITION. 


The  subscribers  have  pleasure  in  presenting  to  the  Profession,  this  new 
edition  of  Smith's  Leading  Cases,  as  furnishing  an  evidence  of  the  con- 
tinued favour  in  which  the  work  is  held. 

It  will  be  found  to  be  not  only  greatly  enlarged,  but,  we  believe,  much 
improved  in  all  respects. 

It  is  reprinted  from  the  last  London  edition  ;  to  which  have  been  carefully 
added  all  the  English  cases  in  point,  which  have  been  since  decided. 

The  American  notes  have  been  revised,  amended  and  improved  ;  and 
the  American  cases,  published  since  the  second  edition,  have  been  incor- 
porated. 

In  both  countries,  therefore,  the  references  to  adjudged  cases  are  brought 
up  to  the  present  date ;  and  the  work  is  believed  to  exhibit,  with  fulness 
and  accuracy,  the  actual  state  of  the  law,  upon  the  points  which  are 
discussed. 

T.  &  J.  W.  JOHNSON. 

Philadelphia,  July,  1847. 


ADVERTISEMENT. 


A  NEW  and  improved  edition  of  Mr.  Smith's  excellent  "  Selection  of 
Leading  Cases"  having  been  published  in  London,  the  undersigned  has 
been  induced  to  offer,  as  a  part  of  his  Library  Series,  a  second  American 
edition,  with  Notes  and  References,  by  Messrs.  Hare  and  Wallace,  whose 
labours,  he  trusts,  will  be  found  to  have  been  faithfully  executed,  and  will 
prove  acceptable  to  the  profession  here. 

The  utility  of  such  a  work,  and  its  great  convenience,  must  be  apparent, 
and  the  best  evidence  of  its  value  is  afforded  in  the  favour  with  which  it 
has  been  received  both  in  this  country  and  in  England.  The  plan  is, 
indeed,  admirable:  and  to  its  very  able  execution,  the  "  Legal  Observer" 
of  London  bears,  in  the  following  language,  the  fullest  testimony  : 

"  This  work,  with  so  unpretending  a  title,  is  an  important  addition  to 
legal  literature.  The  idea  is  excellent, — it  is  to  select  some  of  those 
'  leading  cases'  which  involve,  and  are  usually  cited  to  establish  some  point, 
or  principle  of  real  practical  importance,  and  append  to  them  notes,  in 
which  are  collected  subsf  fjuent  decisions  bearing  on  the  points  reported  in 
the  text,  and  in  which  doctrines  having  some  obvious  connection  with  them 
are  occasionally  discussed.  We  cordially  recommend  this  book  to  the  pro- 
fession. It  is  not  one  of  those  hasty  and  crude  compilations  put  forth  with 
such  fatal  facihty  and  frequency  by  many  of  his  competitors  at  the  bar. 
It  affords  evident  marks  of  long  and  patient  thought,  and  industrious 
research." 

The  Index  to  the  first  volume  will  be  found  with  that  to  the  second,  at 
the  close  of  the  work. 

JOFIN  S.  LITTELL, 

Pliiladelphia, 
March,  1844. 


PREFACE. 

TO    THE    SECOND    EDITION. 


When  this  work  was  first  published,  it  was  hoped  that  it  would  be  found 
to  supply,  in  some  degree,  a  want  which  was  believed  to  have  been  felt, 
although  on  different  occasions,  both  by  the  student  and  the  lawyer  occu- 
pied in  actual  practice. 

The  student,  when  he  devotes  himself  to  the  perusal  of  Law,  is  fre- 
quently advised  by  experienced  friends,  that  he  ought  early  to  habituate 
himself  to  the  perusal  of  Reports  at  large,  instead  of  pinning  his  faith  upon 
the  commentaries  and  abridgments  of  the  treatise  writers — "  Melius  est," 
says  Lord  Coke,  "  petere  fontes  quam  sectari  rivulos." — When,  however, 
he  attempts  to  follow  this  advice,  he  finds  himself  astray  amid  the  masses 
of  accumulated  lore  which  the  Reports  present  to  him,  the  "  aliarum  super 
alias  acervatarum  legum  cumuli  :"  he  feels  his  judgment  perplexed,  his 
choice  distracted,  and  his  immediate  wish  is  that  some  guide  would  direct 
him  to  the  leading  cases,  embodied  in  which  he  might  discover  those  great 
principles  of  Law  of  which  it  is  necessary  that  he  should  render  himself 
thorough  master,  before  he  can  trace  with  accuracy  the  numerous  ramifi- 
cations into  which  those  principles  are  expanded  in  the  surrounding  multi- 
tude of  decisions. 

The  lawyer  engaged  in  actual  business  frequently  also  feels  the  want  of 
a  portable  collection  of  leading  cases,  but  for  a  different  reason.  The  lead- 
ing cases  are  those  with  the  names  of  which  he  is  most  familiar,  which  he 
has  most  frequently  occasion  to  consult,  and  which,  consequently,  he  would, 
if  it  were  practicable,  willingly  carry  into  court  or  round  the  circuit  with 
him. 

It  was  therefore  thought  that  this  collection  might  prove  of  some  utility 
to  both  the  classes  of  Readers  just  described.  The  cases  it  contains  may 
all,  it  is  believed,  be  properly  denominated  "  leading  cases."  Each  involves, 
and  is  usually  cited  to  establish,  some  point  or  principle  of  real  practical 


Vlil  PREFACE. 

importance.  In  order  that  the  consequences  of  each  may  be  understood, 
and  its  authority  estimated  as  easily  as  possible,  notes  have  been  subjoined, 
in  which  are  collected  subsequent  decisions  bearing  on  the  points  reported 
in  the  text,  and  in  which  doctrines  having  some  obvious  connexion  with 
them  are  occasionally  discussed.  This,  though  of  course  the  least  valuable 
part  of  the  work,  has  cost  its  author  by  far  the  greatest  labour  and  anxiety  ; 
care  has  been  taken  in  executing  it  not  to  allow  the  notes  to  digress  so  far 
from  the  subject-matter  of  the  text,  as  to  distract  the  reader's  mind  from  that 
to  which  they  ought  to  be  subsidiary.  In  perusing  them,  it  will  be  found 
that  the  facts  of  some  of  the  cases  cited  are  set  forth  at  considerable  length, 
and  portions  of  the  judgments  transcribed  verbatim.  This  is  done  only 
when  the  case  cited  is  itself  of  such  importance  as  to  merit  the  appellation 
of  a  leading  case,  with  an  abridgment  of  which  the  reader  is  thus  furnished, 
where  it  could  not,  consistently  with  the  plan  of  the  work,  be  presented  to 
him  entire.  As  to  the  references  in  the  margin,  they  are  in  some  instances 
taken  from  previous  editions  of  the  same  case  ;  for  others,  the  present  editor 
is  responsible  :  the  former  are  connected  with  the  text  by  letters,  the  latter 
by  the  sign  t. 

In  this  second  edition,  the  paging  of  the  former  one  has  been  preserved. 
This  has  been  done  because  some  gentlemen  had,  in  works  of  much  greater 
value,  done  this  the  honour  of  referring  to  it ;  and  it  was  thought  desirable 
that  those  references  should  be  applicable  to  this  edition  as  well  as  the 
former.  The  place  where  a  page  in  the  former  edition  terminated  and  a 
new  one  commenced,  is  shown  by  the  sign  *  in  the  text.  Thus  the  first 
page  of  the  former  edition  terminated  at  the  word  resolved,  and  the  second 
page  began  with  the  figure  1,  at  which  there  is  now  an  *  in  the  second  page 
of  this  edition. 

J.  W.  S. 

12  King's  Bench  Walk. 


•-k-C*-' 


'Vltst^  of  gases  repoeted. 


The  pages  referred  to  are  those  between  i>rackets  [ 


Armory  v.  Delamirie 
Ashby  V.  White 
Aslin  V.  Parkin 
Auriol  V.  Mills 
Birkmyr  v.  Darnell 
Bristow  V.  Wright 
Carlye's  Case 
Carter  v.  Boehm     - 
Chandelor  v.  Lopus 
Coggs  V.  Bernard,  - 
Collins  V.  Blantern 
Cooper  V.  Chitty 
Crepps  V.  Burden 
Crogate's  Case 
Cumber  v.  Wane 


ten 


PAGE 
151 

105 
264 
448 
134 

'     '-^n.e^^«.  A>P>*AJ55 

,  /    -'/  ^'^ J  *-^;^^22o 


^Jtl^v/"^       -     ^ —       4 


\0 


Dumpor'scase         -^  Or^oUI^ttVs.    »i gf-Ju   ^ S€^i^,x>^ 

Keech  v.  Hall 
Larapleigh  v.  Brathwa 
Lickbarrow  v.  Mason 
Mason  v.  Lickbarrow 
Master  v.  Miller 
Miller  v.  Race 
Mills  V.  Auriol 
Mitchell  V.  Reynolds 
Moss  V.  Gallimore 
Mostyn  v.  Fabrigas 
Omichund  v.  Barker 
Peter  v.  Compton 
Price  V.  Earl  of  Torri 
Rice  V.  Shute 
Vol.  I 2 


53 

146 
15 


67 
388 
402 
458 


it  ^„^o  d^ify-  f'*v^  c^  ^st^u^ci^b^.^/-  67 

bi^cp*^^    t^^JVa^^  /t<r^  -    ^  250 

JSa<^^  9%^   lt^'^ji^M^w'^/^^«_#CJt>  171 

*/aIv/f^  *w  ^j-/^-*^  «^*»*-.^^«i.j»-«#»-340 

....ngton  ^^^C  UijC^*4.  '^^^•SC^^iSy^    139 


CASES     RE  PORTE  D. 


Robinson  v.Raley    ^^'^IJi!^'^^/^^^;;^,;^:^^ 

Rushton  V.  Aspinall     /l*'*^X^  -  *i~ti^ttrC^JUi,.4LJ     >/  ^^"^ 

Scott  V.  Shepherd      'Ix^^  •^J^'^^^^^  *^^^.*y^  -  210 

Semayne'sCase  .  kfK^^ '^/^Pu^  f**^^A^ei^  dU-fT^  39 
Six  Carpenters'  Case  ¥*-/*  ^uS**.^^  ^^^littAtL  ^  ^^^<^~<^^  ^^ 
Simpson  V.  Hartopp  /f»^*X*/>t\^^tSC»  ^^^^-i/L^/uyt^^cC^^^'L-^^'^ 
Spencer's  Case       CtV<^  ayuSCa  ^vt^t*  ^^ft^  *»t«^  -^t-^w^  22 

Trueman  v.  Fenton  ^A^/^  Lyf^^T^.  ^  .  ^^^'t*^  ^U-  'U^^       3 
Twyne'sCase         fh^f^  ''^-^'"■^  ^    ^^^^^cf^^M^   .  1 

Waugh  V.Carver       i^M/f^^ittp^         .  "  .*^<^  ^IZ.  ^^^ 

Whitcomb  v.  Whiting     JLaA*^^''^^f*'^**^**^Y'  *'**^^^^^^^^  3^8 
^iggleswoith  v.  Dallison    ^k^^vi^^  ^^'^^n^gytCl  ^ttnL-'Tt^^^^    """ 


299 


'  -•  -- t   ■■:■    •  ■•-< 


INDEX 


TO 


THE   NAMES   OE   CASES  CITED 


IN    VOLUME    ONE. 


The  pages  referred  to  are  those  between  brackets  [  ]. 


Abbot  V.  Smith,  71.  291 
Abithol  V.  Beneditto,  332 
Adams  v.  Grane,  192 

V.  Taplinar,  14S 

V.  Worldly,  :509    ' 

Adamson  v.  Jervis,  71 
Addison  v.  Overend,  292 
Aitkenhead  v.  Blades,  65 
Aichin  V.  Hopkins,  150 
Alchorne  v.  Gomme,  316 
Alder  v.  Chip,  248 
Alderson  v.  Langdale,  890 

V.  Pope,  507,  503 

Aldridge  v.  Haines,  386 
Alexander  v.  Bonnin,  328 

V.  Vane,  70 

Alivon  V.  Furnival,  367 
Allan  V.  Bennett,  136 
Allen  V.  Milner,  146 
Alls  V.  Probyn,  150 
Alner  v.  George,  148 
Alsop  V.  Bowtrell,  204 
Anderson  v.  Pitclier,  309 
Andrew  v.  Hancock,  75,  6 
Anscombe  v.  Shore,  65 
Apharry  v.  Bodingham,  13 
Appleton  V.  Lord  Braybrooke,  363 
Archer  v.  Bank  of  England,  259 

V.  Marsh,  183 

Arnsby  v.  Woodward,  19 
Ashcroft  V.  Bourne,  386 
Ashley  v.  Harrison,  132 
Ashlin  V.  White,  79 
Aslin  V.  Parkin,  267,  26S,  269 
Astley  V.  Reynolds,  147 
Aston  V.  Heaven,  lUl 


Atkins  V.  Banwell,  70 
V.  Tredo-old,  319 


Atkinson  v.  Hawdoii,  890 

V.  Maling's,  11 

V.  Warne,  60 

Atlee  V.  Backhouse,  149 
Attorney-General  v.  Bowens,  258,  261 

V.  Diinond,  207. 

V.  F^pe,  261 


Avery  v.  Hoole,  338 
Aylett  V.  James,  441 
Ayres  v.  Wilson,  248 

Backhouse  v.  Harrison,  263 
Basrshaw  v.  Govvard,65 
Bailey  v.  Appleyard,  332 

V.  Bnnnino-,  224.  239 


Bain  v.  De  Vetrie,  355 
Baker  v.  Payne,  308 

V.  Neave,  292 

Ball  V.  Bamford,  14 

Bally  V.  Wells,  38 

Bilme  V.  Hntton,  238,  239 

Bamford  v.  Baron,  10 

Bane  v.  Bethuen,  337 

Bank  of  England  v.  Anderson,  128 

Banks  v.  Parker,  59 

Bannister  v.  Trussell,  443 

Barclay  v.  Raine,  34,  35 

Bardons  v.  Selby,  55 

Barfoot  v.  Goodall,  505 

Barker  v.  Darner,  365 

V.  Green,  131 

V.  Weedon,  324 

Barnard  v.  Godscail,  30 
Barnardiston  v.  Copeland,  372.  375 


xu 


CASES    CITED    IN    VOL.     I. 


•  Barnard iston  v.  Soame,  110 
Barnes  v.  Hunt,  59 
Barrow  v.  Coles,  434 

V.  Wood,  177 

Bartlett  v.  Vinor,  169 

Basten  v.  Carevv,  3e6,  387 

Batcheleur  v.  Gage,  30 

Bateman  v.  Phillips,  127 

Bates  V.  Pilling-,  218 

Batson  v.  Donovan,  101,  102 

Battersbee  v.  Farrington,  13 

Battersey's  Case,  72 

Baxendin  v.  Sharp,  339 

Bayley  v.  Homaii,  150 

Eayne  v.  Stone,  71 

Beard  v.  VVestcotl,  185 

Beauchamp  v.  Powiey,  96,  103 

Beckwaite  v.  Walgrove,  281 

Beckwith  v.  Corrall,  263 

Bedford,  Duke  of  v.  Trustees  of  British 

Museum,  37 
Belcher  v.  Collins,  293 
Bell  V.  Potts,  268 

V.  Harrison,  366 

V.  Warden,  55. 

Bellamont's  Case,  349 
Benjamin  v.  Porteous,  505 
Bennett  v.  Mellor,  52. 
Bennington  v.  Taylor,  302 
Bentley  v.  Hoare,  109 

V.  Hook,  240 

Berry  v.  Taunt,  21 

Berthon  v.  Loughman,  285 

Best  V.  Barber,  376 

Betts  V.  Gibbins,  71,  433 

Bidden  v.  Leader,  169 

Bilton  V.  Johnson,  227 

Bindon,  Viscountess  of,  her  Case,  191 

Birch  V.  Depeyster,  308 

V.  Earl  of  Liverpool,  144 

V.  Wright,  296 

Bird  V.  Gammon,  135,  321 
Birkettv.  Willan,  102 
Biscop  V.  White,  44 
Bishop  V.  Chambre,  490 

V.  Lady  Montague,  223 

Black  V.  Lord  Braybrooke,  368 
Blackett  v.  R.  Ex.  &  A.  Co.  309. 
Blackball  V.  Heal,  147 
Bland  v.  Hazelrig,  318 
Blandy  v.  Allen,  434 
Bliss  V.  Hall,  131 
Bloxham  v.  Pell,  498.  502 

V.  Saunders,  432 

Bloxholm  V.  Oldham,  222 
Bodily  V.  Long,  129 
Bold  V.  Kavnfir,  308 
Bolton  V.  I'liller,  .506 
Bond  V.  Pittard,  490 
Boolhby  V.  Lovvdon,  150 
Boson  V.  Sandford,  268 


Botlingk  V.  Inglis,  4.32 
Bottomley  v.  Brooke,  480 

V.  Forbes,  3U7,  309 


Boucher  v.  Wisemnn,  227 
Boughton  V.  Boughton,  14 
Boulton's  Case,  110 
Bordeaux  v.  Rowe,  355 
Bourne  v.  Diggles,  97 
Bovey's  Case,  65 
Bovven  v.  Bramidge,  12 
Bowman  v.  Horsey,  308 

V.  Nicholl,  490 

V.  Rostrom,  268 


Bowyer's  Case,  364 

Boydell  v.  Drummond,  136.  144 

Bozon  V.  Farlow,  182 

Bracegirdle  v.  Heald,  144 

Bradley  v.  Gregory,  150 

Bragg  V.  Stanner,  174 

Braine  v.  Hunt,  240 

Braithvvaite  v.  Colman,  153 

Bramah  v.  Roberts,  247 

Brandram  V.  Wharton,  319 

Branscombe  v.  Bridges,  219 

Brassey  v.  Dawson,  224 

Brett  V.  Cumberland,  30 

Brewster  v.  Kitchell,  32.  34.  37.  450 

Briantv.  Glutton,  219 

Brice  v.  James,  420 

Bridges  v.  Fisher,  355 

Brind  v.  Dale,  101 

Bringloe  V.  Morrice,  99 

Bristow  V.  Wright,  69.  328.  332 

British  Linen  Co.  v.  Drummond,  367 

Brittain  v.  Kinnaird,  386 

Broadwater  v.  Bolt,  101 

Brook  V.  Pickwick,  101 

Brooke  v.  Bridges,  268, 269 

Brooks  and  another  v.  Glencross,  378 

Brutherton  v.  Wood,  103 

Brown  v.  Carter,  14 

V.  Hodgson,  103 

V.  Shevill,  192 

V.  Thornton,  368 

Browne  v.  Jones,  14 
V.  Lee,  71 


Browning  and  Boston's  Case,  18,  19 
Brucklesbury  v.  Smith,  l-^l 
Bruckshaw  v.  Hopkins,  366 
Brummel  v.  Macpherson,  18 
Bryant  v.  Rush,  35 
Budd  V.  Fairmaoner,  78 
Buller  V.  Delander,  147 

V.  Waterhouse,  13 

Bunn  V.  Guy,  182,  183 

Bunney  v.  Poyntz,  433 

Burdett  v.  Abbott,  46 

Burgess  v.  Clements,  .51 

Burgliall,  Assignees  of,  v.  Howard,  410 

Burleigh  v.  Stott,  319 

Burley  v.  Bethune,  387 


CASES    CITED    IN    VOL.     I. 


Burn  V.  Morris,  263 
Btirnell  v.  Miriot,  71 
Burton  v.  Hughes,  152 
Bush  V.  Gales,  2d 

V.  Parker,  60 

Bushell  V.  Beavan,  136 
Butcher  v.  Harrison,  13 
Butler  and  Baker's  Case,  248 
Butler  V,  Woolcott,  433 
Butterfield  v.  Forrester,  132 

Cabell  V.  Vauglian,  291,  292 
Cadell  V.  Palmer,  185 
Cadogan  v.  Kennett,  11,  14 
Caldwell  V.  Bali,  394.  434 
Gallon  V.  Simpson,  490 
Calvert  v.  Baker,  490 
Calvin's  Case,  197,  199 
Campbell  v.  Lewis,  '29,  30 

V.  Rickards,  278. 284,  285,  286 

Gannan  v.  Denew,  231 
Cantrel  v.  Graham,  441 
Cardwell  v.  Martin,  490 
Carr  v.  Burdiss,  11 

V.  Hinchclifte,247 

Carrington  v.  Roots,  138 
Carlisle  v.  Garland,  238 
Carter  v.  Breton,  231 

V,  Garter,  76 

V.  Whalloy,  490 

Gary  v.  Crisp,  224 
Case  V.  Barber,  138 
Cathcartv.  Hardy,  387 
Chadwick  v.  Trower,  131 
Chambers  v.  Bernasconi,  140 

V.  Donaldson,  152 

Chrmpneys  v.  Peck,  140 
Chancey  v.  Win  and  others,  56 
Chandelor  v.  Lopus,  77 
Chandler  v.  Broughton,  217,  218 
Chapman  v.  Emery,  13 

• V.  Pickersgill,  130 

V.  Walton/i^Q 

Charier  v.  Peeler,  235 
Chaurand  v.  Angerslein,  286.  308 
Cheap  v.  Cramond,  504 
Chesman  v.  Nainby,  182,  183 
Chevers  v.  Parkington,  339 
Child  V.  Morley,  70 
Cholmley  v.  Paxlon,  248 
Christie  v,  Griggs,  101 
Clancy  v.  Piggott,  136 
Clark  V.  Black.-lock,  490 

V.  Glass,  244 

Clarke  v.  Adair,  482 
■  V.  Earnshaw,  101 

V.  Gaskarth,  192 

V.  Gilbert,  240 

V.  Hume,  4.57 

V.  Shee,  262 

Clavering  v.  Clavcring,  14 


Clay  V.  Harrison,  432 
Clayton  v.  Gregson,  308 

V.  Earl  of  Winton,  14 


Clerk  V.  Comer,  182,  183 

V.  Withers,  224 

Clinan  v.  Cook,  307 
Glissold  V.  Clissold,  366 
Close  V.  Holmes,  434 
Clunnes  v.  Pezzy,  153 
Coates  V.  Railton,433. 
Gobbold  v.  Caston,  323 
Cochran  v.  Retburg,  307,  308 
Cockerel  v.  Armstrong,  55 
Cockram  v.  Welbye,  225 
Cockson  V.  Cock,  29 
Coggs  v.  Bernard,  95 
Godrington  v.  Lloyd,  218 
Coghil  V.  Freelove,  30,  441 
Coke  V.  Earl  of  Arundel,  32,  33 
Golburn  v.  Palmore,  72 
V.  Stockdale,  168 


Cole's  Case,  29.  380 

Cole  V.  Davies,  10.  224.  239 

V.  Dyer,  136 
Collingbourne  v.  Mantell,  150 
Collins  V.  Jenkins,  366 

V.  Martin,  259.  201 

V.  Plumb,  37 

V.  Walker,  59 


Colshill's  Case,  6 

Combe  v.  Woolfe,  136 

Congleton,  Mayor  of  v.  Pattison,  29 

Cook  V.  Allen, 240 

Cooke  V.  Birt,  44,  45 

V.  White,  44,45 


Coope  V.  Eyre,  498.  504 
Cooper  V.  Monke,  55 

V.  Phillips,  150 

V.  Wyalt,  21 


Cope  V.  Rowlands,  168 
Copeland  v.  Stephens,  455,  456 
Coppuck  V.  Bovver,  163 
Corbet  v.  Brown.  79 
Cormick  v.  Trapaud,  13 
Cornbury.  Lord,  v.  Middleton,  33 
Cotterel  v.  Hooke,  444 
Cottenl  V.  Dixon,  366 
Courtney  v.  Collet,  216 
Cousins  V.  Paddon,  332 
Covell  V.  Laming,  217 
Covington  V.  Willan,  102 
Cowell  v.  Edwards,  71 
Cowie  V.  Halsall,  490 
Cowling  v.  Higginson,  332 
Cox  v.  Browne,  21 
Craft  V.  Boite,  .55,  365 

v.  Smailwood,  134 

Cranley  v.  Hillary,  150 
Craven  v.  Edmonds,  231 

V.  Henley,  147 

Lord  V.  VViddowes,  500 


XIV 


CASES     CITED     IN     VOLUME     I. 


Cripp  V.  Andprson,  158 

V.  Griffiths,  57 

Crofts  V.  Plarris,  146 
Crook  V.  Jadis,  2G'-i 
Crosfield  v.  iStanley,  231 
Cross  V.  Eglin,  309 
Crowther  v.  Ramsbottom,  310 
Crusoe  v.  Bugby,  20 
Cudlipv.  Riindle,  ;^27 
Cutter  V.  Powell,  150 
Cumber  v.  Wane,  135.  149,  149 
Cumtning  V.  Brown,  434 

V.  Welsford,231 

Currie  v.  Bind,  14 

Curtis  V.  Drinkwater,  366 

V.  Marquis  of  Headfort,  58,  59 

Dakin  v.  Cope,  19 
Dale  V.  Hail,  102 
D'Aquila  v.  Lambert,  431 
Darnell  v.  Trolt,  134 
Dartnali  v.  Howard,  97.  103 
David  V.  EUice,  149 
Davics  V.  Garrett,  ]02 

V.  Powell,  194 

Davis  V.  Eyton,  21 

V.  James,  103 

V.  Mason,  lr!2,  183 

V.  Moreton,  21 

V.  Nest,  387 

Davison  v.  Gill,  387 
Davy  V.  Chamberlain,  100 
Dawes  v.  Peck,  103 
Dawson  v.  Bowman,  366 

• V.  l,inton,  74 

Davy  V.  Edwards,  218 

V.  King,  387 

V.  Mnskett,  356 

V.  VValdork,  236 

Dean  v.  Keate,  99 
Dean  of  Windsor  v.  Cover,  23 
De  Begnis  v.  Armistead,  169 
De  Berkom  v.  Smith,  508 
Decosta  v.  Atkins,  268 
Deely's  Case,  332 
Deerjno-  v.  Winchelsea,  71 
De  la  Vega  v.  Vianiia,  367 
Demandray  v.  Metcalf,  100 
De  Mautort  v.  Saunders,  291 
Deiiby  v.  Moore,  75 
Denn  v.  White,  26S 
Denns  v.  Loring,  21 
Desbrowe  v.  Wethorby,  490 
Devercux  v.  Harlow,  441 
Devaux  v.  Steinkellor,  81 
Dewpy  v.  Bayiitun,  11 
Dickenson  v.  Hatfield,  376 

V.  Valpy,  499 

v.  Watson,  214 

Dillon  V.  Bailey,  375 
V,  Langley,  238 


Dimsdale  v.  Clarke,  397. 
Ditcham  v.  Bond,  219 
Dixon  V.  Cooper,  505 
V.  Yates,  433 


Dobell  V.  Hutchinson,  316 
V.  Stevens,  78 


Dobrce  v.  Napier,  152 
Dodd  V.  Holme,  131 
Doe  V.  Adams,  317 

V.  Bancks,  19 

V.  Benson,  308 

V.  Bevan,  21 

V.  Birch,  190 

V.  Bliss,  18.  20 

V.  Bottriell,  14 

V.  Butcher,  19 

V.  Cadwallader,  295,  296 

V.  Carter,  21 

d.  Chandler  v.  Ford,  168  ,' 

V.  Clarke,  21 

V.  Davis,  21.  268,269 

V.  f^dwards,  315 

dem.  Marriott  v.  Edwards,  331 

V.  Erring  ton,  331 

V.  Fallows,  13 

V.  Gibbs,  269 

V.  Giles,  295 

V.  Goldsmith,  317 

V.  Hales,  295.  296 

V.  Hare,  76.  269 

V.  Harvev,  268 

V.  HuddaVt,  268 

V.  Hawkes,  21 

V.  James,  14 

V.  Laming,  52 

V.  Lea,  308 

V.  Lewis,  17,  18.  20.  23.  143 

V.  Maisey,  295 

V.  Manning,  13 

V.  Marcheiti,  29 

V.  Martyr,  14 

V.  Meux,  19 

V.  Paitison,  355 

V.  Pritcliard,  19,  20 

V.  Kees,  18 

V.  Kowe,  14 

V.  Smith,  456 

V.  Snowden,  305 

V.  Stnple,  295 

V.  Turtord,  140,  141. 

V.  Wliitcombe,  268 

V.  Williams,  20 

V.  Wright,  268 

Donaldson  v.  Foster,  308 
Doiinellan  v.  KcMd,  144 
Doorman  v.  Jenkins,  tt9.  96,  97 
Douglass  V.  Ward,  14 
l>owler  V.  ('olli.-,  363 
Down  V.  Hall  ng,  233 

V.  Kogor.<,  149 


Downes  v.  liichardoon,  490 


CASES     CITED    IN    VOL.     I. 


xr 


Dnwning,  Lady,  v.  Chapman,  161.  163 

Drinkwater  v.  Goodwin,  417 

Dry  V.  Boswell,  505 

Duckett  V.  Williams,  355 

Dubois  V   Liidert,  291 

Dudden  v.  Long,  240 

Duffv.  Budd,  102 

Duffield  V.  Scott,  71 

Dtimpor  V.  Symms,  21 

Dunlop  V.  Waugh,  78 

Dundas  v.  Dutens,  14 

Durore's  Case,  332 

Durnford  v.  Messiter,  70 

Durrell  v.  Bederly,  281.  283.  285 

Dutchman  v.  Tooth,  69 

Dutton  V.  Howell,  345 

—  V.  Solomonson,  10.3 

Duvergier  v.  Fellowes,  169 
Dye  V.  Lealherdale,  60.  66 

Easley  v.  Crockford,  2fi3 
Eastcourt  v.  Weekes,  302 
Easlerby  v.  Sampson,  30 
Eastwick  v.  Caillaud,  12 
Eaton  V.  Southby,  194 
Eden  v.  E.  I.  Co.,  307 
Edwards'  Case,  333 

V.  Harben,  9.  10,  11. 

Edwards  v.  Slierratt,  101 

V.  Brewer,  432,  433 

V.  Brown,  170 

V.  Chapman,  150 

EUiotson  V.  Feetham,  131 
Ellis  V.  Hunt,  432 

V.  Levi,  136 

Elsee  V.  Smith,  218 
Elton  V.  Liirkins,  274 
Elwell  V.  G.  J.  Railway,  59 
Emprfon  V.  Bithurst,  161 
Etherton  v.  Popplewell,  66 
Etheringlon's  Case,  332 
Evans  v.  Duncan,  133 

V.  Davies,  321 

V.  Elliott,  65.  296.  298.  317 

V.  Martlett,  394.  407.  433 

V.  Stephens,  247 

V.  Williams,  376 

Evelyn  v.  Templar,  13 
Exall  V.  Partridge,  70.  73 

Falmouth,  E.  of,  v.  Thomas,  145 
Fancoiirt  v.  Bell,  263 
Farn  worth  v.  Pack  wood,  51 
Faulkner  v.  Chevell,  247 
Fawcett  v.  Fowles,  386 
Featherston  v.  Hutchinson,  169 
Fearon  v.  Bovvers,  410 
Feise  v.  Wray,  4:53 
Fenuer  v.  Mears,  481 
Fenton  v.  Einblers,  143 

V.  Logan,  193,  194 

Ferguson  v.  Norman,  16c) 


Ferrall  v.  Shaen,  169 
Ffytche  v.  Bishop  of  London,  169 
Finch  V.  Throckmorton,  19 
V.  Cocken,  213 


Fisher  v.  Fellowes,  70 
Fisher  wood  v.  Cannon,  60 
Fitch  V.  Sutton,  147 
Fitzherbert  v.  Mather,  274 
Fletcher  v.  Bowsher,  78. 

V.  Harcot,  72 

V.  Heath,  434 

V.  Lord  Sondes 


Flower  v.  Adam,  132 
Folkes  V.  Chadd,286 
Ford  V.  Bay n ton,  236 

V.  Brook,  364 

V.  Hopkins,  257 

V.  Hoskins,  110.  112 

Forth  V.  Staunton,  135 
Forty  V.  Imber,  332 
Forward  v.  Pittard,  101 
Foster  v.  Charles,  79 

V.  Frampton,  433 

V.  Pearson,  263 

V.  Taylor,  366 

Fox  V.  Bishop  of  Chester,  169 

V.  Swann,  21 

Francam  v.  Foster,  143 
Francis  v.  Wyatt,  193 

V.  Doe.  269 

V.  Baker,  78 
V.  Bernard,  146 
V.  Birch,  103 
V.  Crafts,  332 
V.  Freeman,  185 
Wood  house,  274 
Wood,  307-8 


Freeman 


Friere  v. 
Furley  v. 
Fursden  v.  Weeks,  59 


Gale  V.  Reed,  182,  183 
Gardiner  v.  Williams,  339 
V.  Williamson,  24 


Gardom,  Exp.  136 
Gargrave  v.  Smith,  65,  66 
Garland  v.  Carlisle,  239 
Garnet  V.  Willan,  102 
Garrard  v.  Woolner,  149 
Garside  v.  Trent  Navigation  Co.,  101 
Gaskil  v.  King,  169 
Gas  Light  Co.  v.  Turner,  168 
Gates  V.  Bayley,  60.  215 
Geddes  v.  Wallace,  506 
Cellar,  Exp.  .504 
Genner  v.  Sparks,  46 
George  v.  Kitich,  1.52 
V.  Mil  bank,  14 


Gerrard,  Lord,  v.  Floyd,  365 
Gibson  V.  Courthorpe,  4'57 
Gilbart  v.  Dale,  103 
Gilbert  v.  Stone, 214 
Giles  V.  Grover,  235 


XVI 


CASES    CITED    IN    VOL.    I. 


Gill  V.  Cubit,  262,  263 
Gillett  V.  Rippon,  70 
Gillow  V.  Lillie,  170 
Gilman  v.  Elton,  192 
Gisbourne  v.  Hurst,  192,  193 
Glover  v.  Cope,  28 
Glynn  v.  Baker,  259 
Goddard  v.  Vanderheyden,  454 
Godfrey  v.  Turnbull,  505 
Gooch's  Case,  13 
Goode  V.  Cheeseman,  135.  149 
Godfrey  v.  Furzo,  418 
Goodman  v.  Chase,  135 

V.  Harvey,  263 

Godolphin  v.  Tudor,  169 
Godson  V.  Sanctuary,  231 
Goodright  v.  Moses,  13 

V.  Davies,  18 

Goodtitle  v.  Tombs,  268 
Gordon  v.  Harper,  432 
Goram  v.  Sweeting,  247 
Gorgier  v.  Mieville,  258,259 
Gorton  v.  Falkner,  194 
Goss  V.  Neale,  12 

■ V.  Jackson,  387 

Grace  v.  Smith,  498.  503 
Graham  v.  Hope,  505 
Grant  v.  Vaughan,  258,  259 
Grantham  v.  Gordon,  180 

V.  Hawley,  302 

Graves  v.  Key,  148 
Gray  v.  Cookson,  386 
Green  v.  Beesley,  .504 

v.  Button,  132 

Greenaway  v.  Adams,  20 
Greville  v.  Atkins,  168 
Griffin  v.  Yates,  .58 
Griffith  v.  Lee,  103 

V.  Harries,  386,  387 

Griffiths  v.  Vere,  186 

V.  Roxborough,  339 

Grissell  v.  Robinson,  70.  308 
Grocers'  Comp.  v.  Donne,  131 
Groenvolt  v.  Burwell,  345 
Groome  v.  Forrester,  386 
Groves  v.  Cowham,  239 
Guidon  v.  Robson,  507 
Gunmakers'  C.  Mas.  &:c.  of,  v.  Fell, 
Gutsole  v.  Mathers,  81 
Gwynne  v.  Burnell,  170 

Hagedorn  v.  Reid,  140 
Hailie  v.  Smith,  .307 
Haley  v.  Bannister,  186 
Halhead  v.  Abrahams,  248 
Hallet  V.  Byrt,  222 
Halsall  V.  Griffith,  292 
Hammond  v.  Anderson,  433 
Hammond  v.  Howell,  109 
Hamper,  Exp.  .507 
Wancock  v.  Welsh,  457 


182 


Hanson  v.  Meyer,  433 

V.  Stevenson,  457 

Hardcastle  v.  Howard,  146 
Hardy  v.  Martin,  180 

V.  Ryle,  386 

Harker  v.  Birkbeck,  211 
Harley  v.  King,  30 
Harris  v.  Mantle,  328 
Harrison  v.  Bowden,  224 

V.  Goodman,  173 

Hart  V.  Nash,  321 
Hartop  V.  Hoare,  407 
Haslock  V.  Ferguson,  81 
Hartshorne  v.  Watson,  20 
Hastings  v.  Wilson,  457 
Hatton  V.  Walker,  248 
Hawes  v.  Armstrong,  136 
Hawkes  v.  Orton,  328 
Hawkins  v.  Cooper,  131 
Hayes  v,  Warren,  70 
Haynes  v.  Foster,  263 
Hayter  v.  Moat,  339 
Hayward  v.  Bankes,  211 
Heath  v.  Milward,  1.52 
V.  Percival,  500 


Heathcote  v.  Crookshanks,  148 
Hallier  v.  Casbard,  ,30 
Hemingway  v.  Hamilton,  5& 
Hemmings  v.  Robinson,  318 
Henman  v.  Dickenson,  490 
Henry  v.  Burbidge,  339 
Hensworth  v.  Fokes,  218 
Herring  v.  Finch,  111.  129 
Hesketh  v.  Blanchard,  506 

V.  Braddock,  173 

Heylin  v.  Hastings,  318 
Hibbert  v.  Carter,  394 
Hill  V.  Bateman,380 

—  V.  Barclay,  21 

—  V.  Dobie,  4.57 

—  V.  Bishop  of  Exeter,  13 

—  V.  Farrall,  231 

—  V.  Manchester   and  Salford  Water- 

works Comp.  168.  170 
Hindley  v.  M.  of  Westmeath,  168 
Hitchcock  V.  Coker,  183 
Hoare  v.  Dawes,  498.  504 
Hoby  V.  Roebuck,  144 
Hock  in  v.  Cook,  308 
Hodgson  V.  Loy,  432,  433 
Holbird  V.  Anderson,  12 
Holcroft's  case,  13 
Holding  V.  Piggott,  307 
Holland  v.  Bird,  218 
Hollis  V.  Palmer,  322 
Holme  V.  Green,  321 
Holmes  v.  Buckley,  33 

V.  Williamson,  71 

Homer  v.  Ashfbrd,  182 
Hooker  v.  Nye,  55.  59 
Hooper  v.  Hooper,  208 


CASES     CITED    IN    VOL.     I. 


xvu 


Hooper  v.  Stepliens,  821 
Hopkins  v.  Logan,  70,  71 
Hornby  V.  Houlditch,  144 
Horner  v.  Graves,  183 

V.  Moor,  290 

Horsford  v.  Webster,  194 
Houghton  V.  Matthews,  417 
How  V.  Synge,  169 
Howarth  v.  Willet,  366 
Howell  V.  White,  152 
Huber  v.  Steiner,  367 
Hudson  V.  Grainger,  417 
Huggett  V.  Montgomery,  218 
Hughes  V.  Gordon,  367 
Hume  V.  Mugglestone,  247 
Humphreys  v.  Pratt,  72 
Hungerford  v.  Earle,  13 
Hunt's  Case,  332 
Hunt  V.  Dowman,  123,  124 
Hunter  v.  Beale,  400 

V.  Brett,  268 

V.  M'Gown,  103 

Hurry  v.  Mangles,  433 
Hustler  v.  Rames,  244 
Hutchins  v.  Chambers,  194 

V.  Scott,  457 

Hutchinson  v.  Birch,  44,  45 

V.  Bowker,  308 

Hutton  V.  Eyre,  71 

V.  Warren,  306,  307 

Hyde  v.  Johnson,  322 

V.  Mersey  and  Trent  Nav.  Co.  52, 

101 
Hyeling  v.  Hastings,  376 

Inglis  V.  Usherwood,  432 
Irons  V.  Smallpiece,  70,  71 
Irving  V.  Veitch,  321 
Isaac  V.  Clark,  99,  100 

V.  Farrar,  57.  59 

V.  Spilobury,  236 

Isherwood  v.  Oldknow,  28 
Israel  v.  Douglas,  483 

Jackson  v.  Lowe,  136.  323 

V.  Rogers,  101 

Jacob  V.  Hart,  490 
James  v.  Griffin,  433 

V.  Lingham,  332 

V.  Williams,  136 

Januet's  Case,  333 
Jee  V.  Thurland,  168 
Jeffreys  v.  Gurr,  70 
Jelly  V.  Clarke,  52 
Jendwin  v.  iSlade,  78 
Jenks'  Case,  332 
Jenkins  v.  Blizard,  505 

V.  Church,  20 

V.  Kemish,  13 

V.  Reynolds,  136 

Jeivia  V.  Bruton,  185 


Jezeph  V.  Ingram,  10 
Johnson  v.  Dodgson,  136 
V.  Legard,  14 


—  V.  Leigh,  44 

V.  Duke  of  Marlborough,  490 


Jordan  v.  Twells,  247 
Jones  V.  Ashurst,  12 

V.  Kitchen,  .55 

V.  Owen,  381 

V.  Marsh,  14 

V.  Senior,  58 

V.  Tyler,  52 

V.  Waite,  168,  169,  170 

Kearney  v.  King,  309 
Kearslake  v.  Morgan,  147 
Keate  v.  Temple,  134 
Kelly  V.  Partington 
Kemble  v.  Keane,  182 
Kemp  V.  Westbrook,  100 
Kennett  v.  Milbank,  376 
Kennersley  v.  Nash,  490 
Kent  v.  Shuckard,  51 
Keppel  V.  Bailey,  367 
Kerbey  v.  Denbey,  44.  59 
Kerr  v.  Wilian,  102 
Kerrison  v.  Cole,  169 
Kershaw  v.  Cox,  490 
Kettle  V.  Bromsale,  99 
Kidd  V.  Rawlinson,  10 
Kidwelly  v.  Brand,  28 
Kiggil  v.  Player,  221.  295 
Kilner  v.  Bailey,  332 
Kimberley  v.  Jennings,  182 
Kinder  v.  Paris,  247 
King  V.  Jones,  30 

V.  Meredith,  103 

V.  Sears,  70 
Kingdom  v.  Nottle,  30 
Kinsdale  v.  Mann,  225 
Kinlock  v.  Craig,  424 
Kirk  V.  Board,  366 

V.  Clark,  14 
Kirwan  v.  Kirwan,  149.  505 
Kitchen  v.  Campbell,  240 
Knight  v.  Clements,  490 

V.  Gibbs,  132 

V.  Hughes,  70 

. V.  W  core,  332 

Knill  V.  Williams,  490 
Knowlcs  v.  Mitchell,  145 
Kruger  v.  Wilcox,  417 

Lakin  v.  Watson,  292 
Lambert  v.  Hodson,  59 
Lancaster  v.  Greaves,  386 
Lang  V.  Smyth,  2.58 
Langdale,  Exp.  506,  507 
Langford  v.  Tiler,  432 
V.  Waghorn,  55 


Langham  v.  Prodgers,  14 


svm 


CASES     CITED    IN    VOL.     I. 


Langridge  v.  Levy,  131 
Lane  v.  Cotton,  101 

V.  Robinson,  56 

Lanman  v.  Lord  And  ley,  150 
Latimer  v.  Batson,  10 
Launock  v.  Brown,  40 
Jjavendar  v.  Blackstone,  13 
Law  V.  Law,  169 
Lawson  v.  Weston,  261,  262 
Laythroap  v.  Bryant,  137 
Layng  v.  Payne,  169 
Lazarus  v.  Waithman,  238 
Leame  v.  Bray,  217,  218 
Lechmere  v.  Tl)orowgood,  224.  239 
Leek  V.  Mestaer,  101 
Lee  V.  Colshill,  169 

—  V.  Gansel,  45 

—  V.  Muggeridge,  70 
Leeds  v.  Complon,  16 
Leigh  V.  Hind,  183 
Leighton  v.  Wales,  183 
Le  Keux  v.  Nash,  30 
Lempriere  v.  Pasley,  422 
Leonard  v.  Baker,  10 
Lethiilier's  Case,  308 
Levy  V.  Barnard,  422 

V.  Yates,  169 

Lewis  V.  Campbell,  30 

V.  Chase,  372 

Leyfieki's  Case,  488 
Lickbarrow  v.  Mason,  260 
Lilly  v.  Hays,  70 
Lindeneau  v.  Desborough,  263 
Littlefield  v.  Shee,  70 

Lloyd  v.  Crispe,  18.  20 

V.  Sindilands,  45 

Lockwood  v.  Ewer,  100 
Lodge  V.  Dicas,  149 
Longdon  v.  Simson,  186 
Longfellow  V.  Williams,  137 
Longman  v.  Galini,  100 
Longridge  v.  Dorville,  148 
Lovat  v.  Lord  Ranelagh,  21 
Lowther  v.  Lord  Randor,  388 
Lubbock  v.  Tribe,  74 
Lucas  v.  Dorrein,  258 

V.  Nockplls,  59 

Ludford  V.  Barber,  446 
Lush  V.  Wilkinson,  13 
Lyde  V.  Barnard,  79 
Lynn  v.  Briicf>,  14S 
Laysaght  v.  Walker,  138 

Mace  V  Cammel,  10 

Macher  v.  The  Foundling  Hospital,  81 

Macintosh  v.  Haydon,  490 

M'lvor  v.  Humble,  505 

Maclish  V.  Fd<iiis,2f)0 

Magee  v.  Aikinson,  309 

Mair  v.  Glcnnie,  505 

Malina  v.  Freeman,  19 


Mann  v.  Shifner,  417 
Manneton  v.  Trevelian,  243 
Manning's  Case,  233 
Manning  v.  Flight,  456 
Marks  v.  Upton,  455 

v.  Lahee,  142 

Marshall  v.  Holloway,  186 
Martin  v.  Graham,  328 

V.  Podger,  10 

V.  Scudamore,  14 


Martindalo  v.  Booth,  11 
Martin  v.  Coles,  434 
Mason  v.  Ditchbourne,  170 

V.  Lickbarrow,  432 

Matson  v.  Cook,  152 
Matthias  v.  Mesnard,  192 
Matthews  v.  Feaver,  13 
Maving  v.  Todd,  101 
Mahew  v.  Fames,  102 
V.  Nelson,  102 


Mayor  v.  Steward,  441 
Mazzinghi  v.  Stephenson,  169 
Medcalfe  v.  Hodgson,  109 
Megginson  v.  Harper,  317 
Mellor  v.  Spateman,  123 
Merryweather  v.  Nixan,  71 
Meslayer  v.  Biggs,  170 
Meux  V.  Howell,  12 
Michael  v.  Stock  with,  462.  488 
Middlecome  v.  Marlow,  13 
Middlemore  v.  Goodale,  29,  39. 
Miles  V.  Cattle,  102 
Miller  v.  Green,  192 

v.  Race,  463 

Mills  V,  Auriol,  30 
V.  Ball,  433 

V.  Fowles,  321 

Milncs  V.  Branch,  30.  34.  38 
Minet  v.  Gibson,  462.  471 
Minshall  v.  Lloyd,  11 
Mitchell  v.  Reynolds,  37 
Monprivatt  v.  Smith,  59 

Moon  V.  Guardians  of  Witney  Union, 

308 
Moore's  Case,  21 
Moore  v.  Butlin,  332 

V.  Boiilcott,  247 

V.  Horner,  291 

V.  Meagher,  131 

V.  Moiigue,  97 

V.  Pyrko,  73 

V.  Strong,  321 

V.  Wilson,  102 

Moreton  v.  Harderne,  217 
Moorevvood  v.  Wilkes,  12 
Morsran  v.  Brown,  386 

•—  V.  Hughes,  3'^6 

Morley  v.  Boothby,  136 
Morrice  v.  Hurry,  3(56 
Morris  v.  Clayton,  222 
V.  Dixon,  323 


CASES    CITED     IN    VOL.     I. 


Morris  V.  Langdale,  132 

V.  Slacey,  136 

Mors  V.  Slew,  9:^.  95.  101.  129 
Mould=;dule  v.  Bircliall,  480 
Mounteney  v.  Andrews,  224.  227 
Moxon  V.  Atkins,  307 
Mulcarry  v.  Eyres,  19 
Miillelt  V.  Hoo'k,  291 
Murly  V.  Mac  Dermott,  332 
Muspratt  v.  Gregory,  193 

Naish  V.  Tatlock,  70 
Nedliam  v.  Beaumont,  8 
Newberry  v.  Armstrong,  136 
Newman  v.  Earl  of  Hardwicke,  38G 

V.  Newman,  169 

Newsom  v.  Tliornton,  433 
Newsome  v.  Coles,  505.  508 
Newstead  v.  Series,   14 
Nicholls  V.  Bastard,  152 

V.  Haywood,  488 

■ V.  Lefevre,  433 

Nicholson  v.  Wilian,  102 
Nickesson  v.  Trotter,  100 
Noble  V.  Dureil,  308 

V.  Kennoway,  274.  307 

V.  King,  247 

Noel  V.  Rich,  57 

Noke  V.  Awder,  29,  30.  38 
Norman  v.  Cole,  64 
Northey  v.  Field,  433 
Norton  v.  Syms,  169 
Notts  V.  Curtis,  366 
Novelli  V.  Rossi,  490 
Nowell  V.  Roake,  268 
Nunn  V.  Wilson,  11 
Nye  V.  Mosely,  16S 

Oakes  v.  Wood,  59 
O'Brian  v.  Saxon,  56.  247 
Odeli  V.  Wake,  30 
Ogle  V.  Barnes,  218 
Onslow  V.  Corrie,  30.  457 

■ V.  Rapley,  112 

Openheim  v.  Russell,  433 
Osborne  v.  Rogers,  69 
Osgood  V.  Stroud,  14 
Ostler  V.  Bower,  240 
Ougier  v.  Jennings,  307 
Outhwaite  v.  Luntly,  490 
Outram  v.  Morevvood,  268 
Owen  V.  Bennett,  102,  103 
Owen  V.  Body,  12 
Oxley  V.  Watts,  65 

Page  V.  Godder,  457 

Paget  V.  I'ercliard,  10 

Painter  v.  Liverpnol  Gas  Co.,  387 

Palmer  v.  G.  J.  fnnal,  101 

Parke  v.  Edge,  331 

Parker  v.  Barker,  508 


Parker  v.  Cooke,  356 
V.  Riley,  59 


Parkhurst  v.  Foster,  52.  211 
Parkin  v.  Carruthers,  504 
Parkinson  v.  Colliford,  227 
Parring  v.  Harris,  105 
Parslow  V.  Baily,  146 
Parsons  v.  Lloyd,  218 
Partington  v.  Woodcock,  317 
Partridge  v.  Scott,  131 
Pasley  v.  Freeman,  78,  79.  131 
Passenger  v.  Brookes,  67 
Paterson  v.  Powel,  270 
Patterson  v.  Tasli,  407 
Paunceforl's  case,  4 
Pawle  V.  Gunii,  70 
Paxton  V.  Fophaii),  163 
Payne  v.  Johnson,  138 
Paynter  v.  Williams,  70 
Peacock  v.  Purvis,  138.  194 
Rhodes,  259.  463 


Pearce  v.  Morrice,  170 
Pearson  v.  Skelton,  71 
Pease  v.  Hirst,  319 
Peer  v.  Humphrey,  258 
Peelers  v.  Opie,  67 
Pennant's  cnse,  19 
Penn  v.  Ward,  .59 
Pentoa  v.  Browne,  44 
Peppin  V.  Solomons,  323 
Perham  v.  Rayiial,  319 
Peter  v.  Compt<>n,  137 
Philimore  v.  Barry,  136.  323 
Phillips  V.  Biggs,  71 
V.  Healh,  4;i4 
V.  Howgale,  59 
V.  Thompson,  225 


Philpott  V.  Aslet,  376 
V.  Hoi  re,  21 


Phythian  v.  White,  332 
Picard  v.  Featherstone,  366 
Pickstock  V.  Lyster,  12 
Pierce  v.  Bartrum,  173 
Piggot  V.  Birtles,  194 
Pigot's  case,  460.  485 
igot  V.  Kemp,  55,  .56 
PiTlan  V.  Van  Alierop,  481 
Pinnell's  case,  148 
Pitcher  v.  Tovey,  30 
Pitman  v.  Maddox, 
Planch  V.  Anderson,  131 
Pole  V.  Harrobin,  168,  169 
Polhill  V.  Walter,  79 
Pontet  V.  Bassingstoke  Canal  Co.,  178 
Poole's  case,  192 
Poole  V.  Dicas,  140 
Pope  V.  Biggs,  316,  317 

V.  Skmner,  332 

Pordage  v.  ("ole,  67 

Portmore,  Earl  o^',  v.  Bunn,  34.  38 

Pothener  v.  Dawson,  100 


XX 


CASES     CITED    IN    VOL.     I. 


Potter  V.  Starkie,  238 

Rex  V.  Coggan,  116 

Powell  V.  Norton,  308 

—  V.  Cox,  181 

Power  V.  Barkham,  78 

—  V.  Crisp,  387 

Pownall  V.  Ferrand,  70 

—  V.  Davis,  387 

Price  V.  Easton,  70 

—  V.  Dempsey,  387 

V.  Harwood,  45 

—  V.  Denbighshire,  Jus.  of,  387 

V.  Helyar,  238 

—  V.  Dobbyn.  387 

V.  Neale,  463 

—  V.  Dodd,  .504 

V.  Peek,  59   66 

—  V.  El  well,  387 

V.  Shute,  463.  466.  474.  476 

—  V.  Fell,  3S7 

Prince  v.  Same,  35.5 

—  V.  Flounders,  387 

Pring  V.  Henley,  331 

—  V.  Fuller,  387 

Prittv.  Fairclough,  140 

—  V.  Gage,  387 

Prole  V.  Wig-gins,  168 

—  V.  GIossop,  387 

Pye's  case,  332 

—  V.  Goodenough,  387 

—  V.  Gravesend,  170 

Raine  v.  Ajderson,  218 

—  V.  Green,  387 

Raitt  V.  Mitchell,  308 

—  V.  Gregory,  170 

Randall  v.  Rigby,  37.  448 

—  V.  Gutch,  72 

RatclifFe  v.  Burton,  44,  45, 

46 

—  V.  Hall,  387 

V.   Hanson,  387 

Raynnond  v.  Fitch,  30 

—  V.  Harris,  387 

Read's  case,  191 

—  V.  Harrison,  387 

Read  v.  Brookman,  460.  488 

—  V.  Hartley,  506 

V.  Farr,  19,  20 

—  V.  Hawkes,  387 

Reading  v.  IMeiiham,  100. 

809 

—  V.  Heber,  383 

Reay  v.  Richardson,  149 

—  V.  Hendon,  Lord  of  Manor  of,  116 

V.  White,  149,  150 

—  V.  Hewes,  387 

Rede  v.  Barley,  193 

—  V.  Holland,  247 

Reed  v.  Wilniot,  11 

—  V.  Howe,  387 

Rees  V.  Petet,  319,  320 

—  V.  Huggins,  211 

Reeves  v.  Capper,  100 

—  V.  Hunt,  339 

■  t        tT/^o  i.n,-*         1   f^rt 

—  V.  Jpswich,  Recorder  of,  387 
y^  James,  387 

T       F?  fO  Vf"       1  4 

Reid  V.  Blades,  10,  11 

—  V.  Jarvis,  387 

Regil  V.  Green,  247 

—  V.  Johnson,  387 

Renteria  v.  Ruding,  260 

—  v.  Jukes,  387 

Rex  V.  Agardsley,  116 

—  V.  Kent,  387 

—  V.  Abbot,  387 

—  v.  Kite,  387 

—  V.  Allen,  387 

—  V.  Lancashire,  Justices  of,  387 

—  V.  Allington,  384 

—  v.  Leicester,  Jus.  of,  170 

—  V.  Barker,  387 

—  V.  Lovett,  387 

—  V.  Bass,  387 

—  v.  Mallison,  387 

—  V.  Battans,  387 

—  V.  Manchester  and  Leeds  Rail  Co 

—  V.  Bellamy,  387 

3^7 

—  V.  Ben  net,  116 

—  V.  Marlow,  Great,  Inhabitants,  387 

—  V.  Berkeley,  387 

—  V.  Marsh,  387 

—  V.  Bird,  44 

—  V.  Marty n,  387 

—  V.  Bloxam,  387 

—  V.  Methuen,  387 

—  V.  Boughey,  387 

—  V.  Middlesex,  Justices  of,  387 

—  V.  Bouibee,  387 

—  V.  Moseley,  387 

—  V.  Brein,  223 

—  v.  Neville,  387 

—  V.  Bristol  and  Exeter 

Railway  Co. 

—  V.  Nudigate,  325 

387 

—  V.  Pearse,  387 

—  V.  Bridgor,  12 

—  V.  Feiin,  387 

—  V.  Wasters  of  Brewers 

Co.  116 

—  V.  Pcrrot,  387 

—  V.  Cambridgeshire,  Jus. 

of,  387 

—  V.  Picton,  387 

—  V.  Carlisle,   249 

—  V.  Pullen,  387 

—  V.  Chandler,  387 

—  v.  Ranslcy,  387 

—  V.  Cheshire,  Jus.  of,  387 

—  V.  Rennet,  116 

—  V.  Clarke,  3ti7 

—  V.  Robinson,  20 

CASES     CITED     IN     VOL.     I. 


XXI 


Rex  V.  Salomans,  387 

—  V.  Searle,  286 

—  V.  Sheffield  and  Manchester  Railway 

Company,  387 

—  V.  Shrewsbury,  Justices  of,  387 

—  V.  Simpson,  3S7 

—  V.  Smith,  384.  387 

—  V.  Somersetshire,  Justices  of,  387 

—  V.  South  Holland  Drainage  Commit- 

ttee-men,  387 

—  V.  Speed,  387 

—  V.  Stone,  384.  387 

—  V.  St.  Jame's,  Westminster,  387 

—  V.  St.  Mary,  387 

—  V.  St.  Nicholas,  387 

—  V.  Swallow,  387 

—  V.  Symons,  387 

—  V.  Taylor,  209 

—  V.  Theed,  384 

—  V.  Thompson,  387 

—  V.  Trelawney,  387 

—  V.  Venables,  384 

—  V.  Vipont,  387 

—  V.  Warneford,  287 

—  V.  Wheatman,  387 

—  V,  Wiltshire,  387 

—  V.  Wilson,  387 

—  V.  Yorkshire,  J.  of  West  Riding,  387 
Reynolds  v.  Clarke,  211 

V.  Blackburne,  59 

Rich  V.  Coe,  500 

V.  Kneeland,  101 

Richardson  v.  Evans,  18 

V.  Goss,  433 

V.  Hill,  70 

Richmond  v.  Smith,  51 

Rickards  v.  Murdock,  278.  284.  285 

Riddell  v.  Pakeman,  218 

Ridgway  v.  Philip,  508 

Riley  v.  Home,  101 

Roach  V.  Thompson,  71 

Roach  V.  Wadham,  31 

Roberts  v.  Barker,  307.  309 

V.  Bate,  292 

V.  Davy,  19,  20 

V.  Harnage,  356 

V.  Wright,  366 

Robertson  v.  Clarke,  307 
Robinson  v.  M'Donnell,   11 

V.  Raley,  56 

V.  Waller,  50 

V.  Wilkinson,  504 

Robson  V.  Douglas,  152 
Roe  V.  Galliers,  21 

—  V.  Harrison,  18.  20 

—  V.  Hay  ley,  29 

—  V.  Mitton,  14 

—  V.  Read,  295 

—  V.  Sales  20 

Rogers  v.  Humphreys,  28.  317 
V.  Irabledon,  218 


Rogers  v.  Parry,  174 

v.  Shillibecr,  78 


Rohrs  V.  Sessions,  366 
Rooth  V.  Wilson,  99 
Roper  V.  Birbech,  490 
Rose  V.  Picktbrd,  433 
Rosewell  v.  Prior,  211 
Rowlandson  Exp.  506,  507 
Rowley  v.  Home,  102 
Rudee  v.  Birch,  480 

V.  Grand  J.  Co.  131 


Russel  v.  Hammond,  13 

v.  Langstafle,  415.  463 

v.  Moseley,  136 


Ryal  v.  Rolle,  100 
Ryde  v.  Curtis,  136 

Sadler  v.  Nixon,  71 

Sainsbury  v.  Matthews,  328 

Saint   Cross,    The    Master   of,   v.  Lord 

Howard  de  Walden,  308 
Sands  and  another  v.  Ledger,  325 
Santler  v.  Heard,  366 
Sapsfork  v.  Fletcher,  73 
Sargent  v.  Morris,  103 
Saunders  v.  Jackson,  136.  144 

v.  Wakefield,  136.  323 


Savage,  qui  tam  v.  Smith,  325.  327 
Savignac  v.  Cuife,  294.  400.  427 
v.  Roomc,  218,  219 


Say  &  Seale  v.  Stephens,   113 
Saxby  v.  Kirkus,  247 
Saxon  v.  Castles,  339 
Scaife  v.  Tobin,  260 
Schlencker  v.  Moxey,  73 
Scott  v.  Bell,  14 
Scott  v.  Petit,  433 
Sedgworth  v.  Overend,  292 
Seers  v.  Hind,  21 
Selby  v.  Bardons,  5.5.  247 
Senior  v.  Armitage,  306 

V.  Butt,  138 

Shackell  v.  Rosier,  72. 169 
Shakespeare's  case,  333 
Sharpe  v.  Grey,  101 
Shaw  V.  Bean,  12 

V.  Rhodes,  186 

Shears  v.  Rogers,  10.  13 
Sheere  v.  Brookes,  45 
Shepherd  v.  Kain,  78 
Shiells  V.  Blackburn,  97.  103 
Shipley  v.  Kymer,  434 
Shipton  V.  Casson,  150 
Shortrede  v.  Cheek,  136 
Shute  v.  Hornsey,  327 
Shott  v.  Strcatfield,  .507 
Siffken  v.  Wrey,  432 
Siboni  v.  Kirkman,248 
Sigourney  v.  Lloyd,  252 
Sims  V.  Simson,  2^7 
Siinson  v.  Butcher,  19 


xxu 


CASES    CITED     IN    VOL.     I. 


Skaife  v.  Jackson,  148 

Skutt  V.  Woodward,  249 

Slack  V.  Sharpe,  456 

Slater  v.  Barker,  211.  214 

■ V.  West,  263 

Sleat  V.  Fao-g,  l()2 

Sloman  v.  Cox,  490 

Slubey  v.  Hayward,  433 

Sly  V.  Finch,  227 

Small  V.  aioate,  433 

Bmartle  v.  Williams,  13.  295.  297 

Smith  V.  Alexander,  376 

V.  Campion,  70 

' V.  Dixon,  247 

V.  Eg-gington,  66 

V.  El  kins,  366 

V.  Coodwin,  218,  219 

V.  Goss,  433 

V.  Grashaw,  129 

• V.  Home,  102 

V.  MiHes,  237 

V.  Pilkington,  317 

V.  Walton,  3U8 

V.  Watson,  .506 

V,  Westall,  143 

V.  Wilson,  30S 

Snee  v.  Prescotf,  393.  401.  431.  434 

Snellingv.  Lord  Huntingfield,  144 
Snow  V.  Peacock,  263 

• V.  Saddler,  261.  263 

Solomons  v.  Bank  of  England,  259 

V.  Nissen,  416 

Solley  V.  Neish,  .58 

South  Sea  Company  v.  Diincombe,  100 
Southcote's  case,  83,  84,  85.  90 
Southampton  v.  Hertford,  186 
Southerton  v.  Whiilocke,  376 
Sowell  V.  Champion,  2J9 
Speake  v.  Richards,  227 
Spencer  v.  Billing,  508 

■  V.  Boyes,  30 

V.  Duke  of  Marlborough,  185 

■  V.  Parry,  74 

Spieres  v.  Parker,  387 
Sprowle  V.  Legge,  309 
Spurgeon  v.  Collier,  14 
Staff'urd  v.  Clarke,  268 
Stammers  v.  Year.<ley,  60 
Standen  v.  Bullock,  613 
Stansell  v.  .Jul  lard,  131 
Stanley  v.  Hislop,  366 
Stapp  V.  Lill,  136 
Stead  V.  Moon,  170 
Steel  V.  Brown,  11 
Steinman  v.  Magnus,  150 
Stennell  v.  Hogg,  243 
Stephen  v.  Olive,  12 
Stephens  v.  Wilkinson,  432 
Sterling  v.  Turner,  111 
Steuart  v.  Wilkins,  78 
Stevens  v.  Underwood,  247 
Stevenson  v.  Lumburd,365 


Stewart  v.  Bell,  274 
Stobart  v.  Dryden,  142 
Stoddart  v.  Barker,  332 
Stokes  V.  La  Riviere,  400 

V  Lewis,  70 

V.  Russell,  31.  317 


Stonehouse  v.  Elliott,  218 
Storr  V.  Scott,  134 
Stoveld  V.  Hughes,  433 
Strange  v.  Witney,  263 
Stratton  v.  Rastall,  148 
Strickley  v.  Butler,  21 
Stuart  v.  Nicholson.  182 
Stubbs  V.  Parsons,  7.5,  76 
V.  Lainson,  247 


Sullivan  v.  Montague,  489 
Sutton  V.  Buck,  1.52 

V.  Mitchell,  103 


Swain  v.  Shepherd,  103 
Swann  v.  Phillips,  81 
Symonds  v.  Page,  269 
Symons  v.  Knox,  328 

Tarback  v.  Marbury,  12,  13 
Tatern  v.  Chaplin,  29 
Tatlock  V.  Harris,  464.  466 
Taylor  v.  Baker,  147 

V.  Cole,  60,  61 

v.  Kymer,  260 

v.  Moseley,  490 

V.  Shnm,  30 


—  V.  Trueman,  260 

—  V.  Young,  4.56 

—  v.  Zamira,  72,  73 


Teal  V.  Auty,  145 
Thellusson  v.  Woodford,  185 
Thomas  v.  Cook,  71 

V.  Day,  101 

V.  Heathorn,  148 

V.  Pemberton,  4.57 


V.  Shillibeer,  69 

Thompson  v.  Farmer,  434 

■  V.  Lacy,  52 

V.  Mashiter,  192 

- — ■ V.  Percival,  149 

Thomson  v.  Harvey,  161 
Thorpe  v.  Thorpe,  420 
Thornton  v.  R.  E.  A.  Co.  286 
Thunder  v.  Belcher,  29.5.  297 
Thursliy    v.    Plant,    27.    30.    36.    45 

422 
Tibbatts  v.  Yorke,  339 
T  id  marsh  v.  G  rover,  490 
Tipper  v.  Bicknell,  70 
Tippetts  v.  Heane,  321 
Toinlinson  v.  Gell,  135 
Tookc  v.  Hoi  ling  worth,  4.32 
Touker  v.  D.  of  Beaufort,  147 
Toulmin  v,  Anderson,  150 
Tous.-aint  v.  Martainant,  70 
|J'ownsend  v.  Wyndham,  13 
Trelawney  v.  B.  of  Wincheeter,  147 


CASES    CITED     IN    VOL.    I. 


XXIU 


Trentham  v.  Deverill,  321 
Treuttel  v.  Barandon,  259 
Trevillion  v.  Pyne,  152 
Trimbey  v.  Vignicr,  367 
Trower  v.  Chadwick,  131 
Tnieman  v.  Fcnton,  70,  71 
Tuck  V.  Fyson,  456 

V.  Tuck,  332 

Tucker  v.  Tucker,  4S0 

V.  Wil-on,  100 

TuUett  V.  Arnistrongr,  184 
Tulley  V.  Sparkes,  443 
Turner  v.  Davis,  70 

V.  Felgale,  224 

V.  Richardson,  457 

V.  Vaughan,  168 

Twynara  v.  Pickark,  28 

Udhe  V.  Walters,  307 
Upton  V.  Bassett,  14 
Urmston  v.  Newcoman,  70 

Vallance  v.  Dewar,  274.  307 

V.  Savage,  316 

Vallejo  V.  Wheeler,  307 
Vanderhagen  v.  Rewise,  222 
Vandersee  v.  Willis,  100 
Vaughan  v.  Menlove,  131.  2G3 
Vaughan  v.  Wilson,  150 
Vere  v.  Smith,  100,  101 
Vernon  v.  Han  key,  238 
Vernon  v.  Smith,  29 
Vicars  v.  Wilcox,  132 
Villers  v.  Beaumont,  14 
Vinkinstone  v.  Ebdcn,  190 
Vivian  v.  Jenkins,  57 
Vooght  V.  Winch,  268 
Vy  vyan  v.  Arthur,  29 

Waddilove  v.  Barnett,  316,  317 
Wade's  case,  209 
Wadham  v.  Marlowe,  440.  442 
Wain  v."  Warlters,  135.  137.  144 
Wainwriglit  v.  Bland,  355 
Waite  V.  Jones,  169 
Wakeman  v.  Sutton,  138 
Walker's  case,  440.  443 
Walker  v.  Perkins,  108 

v.  Willougby,  45 

Wallace  v.  Telfair,  96 
Waller  v.  Smith,  100 
Wallis  V.  Day,  183 
Walter  v.  Cubley,  490 

Hanger,  123 

Walton  V.  Hastings,  89,  90 
Wannell  v.  Chamberlain  of  City  of  Lon- 
don, 173 
Warde  v.  Burne,  182 
Ward's  case,  408 
Ward  V.  Weeks,  132 
Warren  v.  Consett,  441 


Waters  v.  Ogden,  248 

V.  Tomkins,  321 

Watkins  v.  Birch,  10 

V.  Tower,  366 

Watson  V.  'i'urner,  70 

V.  Wilks,  59 

Watts  V.  Daniel,  366 
Walters  v.  Smith,  148 
Way  v.  Yallay,  356 
Weaver  v.  Ward,  214 
Webb  in  re,  101 

V.  Bell,  191 

v.  Jiggs,  448 

v.  Plummer,  306 

V.  Rhodes,  76 

V.  Russell,  28,  29.  31.  317 

V.  Weatherby,  247 

Webster  v.  De  Tastet,  276 
Weeton  v.  Woodcock,  218 
Wells  V.  Horton,  144 

v.Ody,  215,216 

Welsh  V.  Myers,  457 

V.  Hopkins,  328 


Wenham  v.  P'owle,  150 
Wennall  v.  Adney,  70 
Westbeer's  case,  333 
Westbuiy  v.  Powell,  119 
Westzinthus  in  re,  435 
Wetherall  v.  Geering,  21 
Wheatley  v.  Patrick,  218 
Wheeler  Exp.  504 
Wheeler  v.  IBramah,  4-57 
Wniitcombe  v.  Lee,  136 
White's  case,  209 
White  v.  Reeve,  247 

V.  Sayer,  302,  303.  307 

V.  Stringer,  14 

v.  Stubbs,  55 

V.  Wiltshire,  44.  46 

Whittaker  v.  Hales,  295,  296 
V.  Mason,  57,  58 


Whitten  v.  Peacock,  28.  38 
Wigg  v.  Shuttleworth,  169 
Wightman  v.  Townroe,  504 
Wiles  v.  Cooper,  387 
Wilkes  v.  Broadbent,  303 
Wilkinson  v.  Byers,  148 

V.  Coverdale,  96 

V.  Frasier,  505,  506 

V.  Ilali,  296 

V.  Johnson,  490 


Williams'  case,  110 
William  v.  Gesse,  52 

V.  Holland,  218 

v.  Lea  per,  260 

V.  Moslyn,  131 

V.  Ogle,  332 

Williamson  v.  Allison,  78.  326.  332 
V.  Thompson,  259 


Willis  V.  Newliam,321 
Wilmhurst  v.  Bowker,  432 


xxiv 


CASES     CITED    IN     VOL.     I. 


Wilson  V.  Butler,  268 

V.  Cutting,  71 

V.  Dickson,  103 

V.  Lainson,  332 

V.  R.  E.  A.  Company,  276 

Winch  V.  Keel ey,  480 

Windsor,   Dean  and    Chapter   of,   their 

case,  29 
Windsor,  Dean  and  Chapter  of,  v.  Cover 

24 
Wing  V.  Earle,  308 

V.  Mill,  70 

Winsmore  v.  Greenbank,  131 
Winterbourne  v.  Morg-an,  66 
Wintle  V  Crowther,  504 
Witeman  v.  Vandeputt,  402.  428.  431 
Wish  V.  Small,  405 
Withal's  case,  332 
Withington  v.  Herring,  507 
Wolley  V.  Idle,  173 
Wood  V.  Benson,  136.  169 

V.  Clark,  193 

V.  Grimwood,247 

V.  Roberts,  150 

Woodward  v.  Walton,  219 


Wookey  v,  Pole,  292 
Wordall  v.  Smith,  10 
Worthington  v.  Wigley,  148 
Wright  V.  Acres,  149 

V.  Campbell,  392.  395.  327.  399. 

424.  427 

V.  Dewes,  192.  194 

V.  Snell,  102 

Wrightson  v.  Pullen,  505 
Wyatt  V.  Blades,  238 

V.  Harrison,  131 

—  V.  Hodgson,  319,  320 

Wyrie  v.  Stapleton,  268 

Yarmold  v.  Moorhouse,  21 
Yeates  v.  Pym,  309 
York  V.  Grindstone,  52 
Youde  V.  Youde,  366 
Young  V.  Axtell,  498.  507 
V.  Marshall,  240 


Young  V.  Timmins,  182 
V.  Wright,  332 


Zwinger  v.  Samuda,  258 


TWYNE'S  CASE. 


MICH.  44  ELIZ.— IN  THE  STAR-CHAMBER. 

[reported  3  COKE,  80.] 

What  transactions  are  fraudulent  v;ithin  st.  13  Eliz.  c.  5,  and  27  Eliz.  c.  4. 

In  an  information  by  Coke,  the  Glueen's  Attorney-General,  against  Twyne 
of  Hampshire,  in  the  Star-Chamber,(a)  for  making  and  publishing  of  a 
fraudulent  gift  of  goods.  The  case  on  the  stat.  of  13  Eliz.  c.  5,  was  such  : 
Pierce  was  indebted  to  Twyne  in  400/.  and  was  indebted  also  to  C.  in  200/. 
C.  brought  an  action  of  debt  against  Pierce,  and  pending  the  writ,  Pierce, 
being  possessed  of  goods  and  chattels  of  the  value  of  300/.,  in  secret  made  a 
general  deed  of  gift  of  all  his  goods  and  chattels,  real  and  personal  whatso- 
ever, to  Twyne,  in  satisfaction  of  his  debt ;  notwithstanding  that  Pierce 
continued  in  possession  of  the  said  goods,  and  some  of  them  he  sold  ;  and 
he  shore  the  sheep,  and  marked  them  with  his  own  mark  ;  and  afterwards 
C  had  judgment  against  Pierce,  and  had  a  fieri  facias  directed  to  the  sheriff 
of  Southampton,  who  by  force  of  the  said  writ  came  to  make  execution  of 
the  said  goods  ;  but  divers  persons,  by  command  of  the  said  Twyne,  did  with 
force  resist  the  said  sheriff,  claiming  them  to  be  the  goods  of  the  said  Twyne 
by  force  of  the  said  gift ;  and  openly  declared  by  the  commandment  of 
Twyne,  that  it  was  a  good  gift,  and  made  on  a  good  and  lawful  consideration. 
And  whether  this  gift,  on  the  whole  matter,  was  fraudulent  and  of  no  effect  by 
the  said  act  of(6)  13  Eliz.,  or  not,  was  the  question.  And  it  was  resolved  by 
Sir  Thomas  Egerton,  Lord  Keeper  of  the  Great  Seal,  and  by  the  Chief 
Justice  Topham  and  Anderson,  and  the  whole  Court  of  Star-Chamber,  that 
this  gift  was  fraudulent,  within  the  statute  of  13  Eliz.  And  in  this  case 
divers  points  were  resolved : 

(a)  Moor,  638.  Lane,  44,  45.  47.  Co.  Lit.  3,  b,  76,  a,  290,  a.  3  Keb.  259.  See  the 
Stat.  27  Eliz.  cap.  4. 

(6)  5  Co.  60,  a,  b.  6  Co.  18,  b.  10  Co.  56,  b.  3  Inst.  152.  Co.  Lit.  3,  b,  76,  a,  290,  a, 
b.  13  El.  e.  5.  2  Leon.  8,  9.  47. 223.  308,  309,  3  Leon.  57.  Latch,  222.  2  Rol.  Rep. 
493.  Palm.  415.  Cr.  El.  233,  234.  645.  810.  Cro.  Jac.  270,  271.  Dy.  295,  pi.  17.  351, 
pi.  23.  2  Bulst.  226.  Rastal,  Entries,  207,  b.  Lane,  47.  103.  Hob.  72.  166.  Moor, 
638.    Doct.  pla.  200.    Yelv.  196,  197.    1  Brownl.  111.    Co.  Ent.  162,  a. 

Vol.  I.—3 


34  smith's    LEADING    CASES. 

J.  -.  *That  this  case  had  the  signs  and  marks  of  fraud,  because  the 
L  -■  gift  is  genera],  without  exception  of  his(c)  apparel,  or  any  thing  of 
necessity  ;  for  it  is  commonly  said,  quod,(f?)  dolosus  versatur  in  generalibus. 

2.  The  donor  continued  in  possession,  and  used  them  as  his  own  ;  and 
by  reason  thereof  he  traded  and  trafficked  with  others,  and  defrauded  and 
deceived  them. 

3.  It  was  made  in  secret,  et  dona  clandestina  sunt  semper  suspiciosa. 

4.  It  was  made  pending  the  writ. 

5.  Here  was  a  trust  between  the  parties,  for  the  donor  possessed  all,  and 
used  them  as  his  proper  goods,  and  fraud  is  always  apparelled  and  clad 
as  a  trust,  and  trust  is  the  cover  of  fraud. 

,6.  The  deed  contains,  that  the  gift  was  made  honestly,  truly,  and  bona 
fide  ;  et  clausulae  inconsuet'  semper  inducunt  suspicionem.  s 

Secondly,  it  was  resolved,  that  notwithstanding  here  was  a  true  debt  due 
to  Twyne,  and  a  good  consideration  of  the  gift,  yet  it  was  not  within  the 
proviso  of  the  said  act  of  13  Eliz.,  by  which  it  was  provided,  that  the  said 
act  shall  not  extend  to  any  estate  or  interest  in  the  lands,  &c. ;  goods  or 
chattels,  made  on  a  good  consideration  and  bona  fide  ;  for  although  it  is  on  a 
true  and  good  consideration,  yet  it  is  not  bona  fide,  for  no  gift  shall  be  deemed 
to  be  bona  fide  within  the  said  proviso  which  is  accompanied  with  any  trust. 
As  if  a  man  be  indebted  to  five  several  persons  in  the  several  sums  of  20/., 
and  have  goods  of  the  value  of  20/,,  and  make  a  gift  of  all  his  goods  to  one 
of  them  in  satisfaction  of  his  debt,  but  there  is  a  trust  between  them,  that 
the  donee  shall  deal(c)  favourably  with  him  in  regard  of  his  poor  estate, 
either  to  permit  the  donor,  or  some  other  for  him,  or  for  his  benefit,  to  use 
or  have  possession  of  them,  and  is  contented  that  he  shall  pay  him  his  debt 
when  he  is  able,  this  shall  not  be  called  bona  fide  within  the  said  proviso ; 
for  the  proviso  saith  on  a  good  consideration,  and  bona  fide  ;  so  a  good  con- 
sideration does  not  suffice,  if  it  be  not  also  bona  fide.  And  therefore,  reader, 
when  any  gift  shall  be  to  you  in  satisfaction  of  a  debt,  by  one  who  is  indebted 
to  others  also  ; — 1.  Let  it  be  made  in  a  public  manner,  and  before  the 
neighbours,  and  not  in  private,  for  secrecy  is  a  mark  of  fraud.  2.  Let  the 
r*qi  goods  and  chattels  be  appraised  by  good  *people  to  the  very  value, 
L  -^  and  take  a  gift  in  particular  in  satisfaction  of  your  debt.  3.  Immedi- 
ately after  the  gift  take  the  possession  of  them ;  for  continuance  of  the  pos- 
session in  the  donor  is  the  sign  of  trust.  And  know,  reader,  that  the  said 
woi'ds  of  the  proviso,  on  a  good  consideration,  and  bona  fide,  do  not  extend 
to  every  gift  made  bona  fide  ;  and,  therefore,  there  are  two  manner  of  gifts 
on  a  good  consideration,  scil.,  consideration  of  nature  of  blood,  and  a 
valuable  consideration.  As  to  the  first  in  the  case  before  put,  (Cr.  Jac.  127. 
Palm.  214,)  if  he  who  is  indebted  to  five  several  persons,  to  each  party  in 
20/,,  in  consideration  of  natural  afit?ction  gives  all  his  goods  to  his  son  or 
cousiri,  in  that  case,  forasmuch  as  others  should  lose  their  debts,  &c,,  which 
are  things  of  value,  the  intent  of  the  act  was,  that  the  consideration  in  such 
cases  should  be  valuable  ;  for  equity  requires  that  such  gift,  which  defeats 
others,  should  be  made  on  as  high  and  good  consideration  as  the  things 
which  are  thereby  defeated  are ;  and  it  is  to  be  presumed  that  the  father,  if 
he  had  not  been  indebted  to  others,  would  not  have  dispossessed  himself  of 

(c)  Godb.  .338.  (c/)  2  Bulst.  226.    2  Co.  34,  a,    1  Rol.  Rep.  157,    Moor,  321. 

(e)  Goldsb.  161. 


TWVNE     S     CASE.  35 

all  his  goods,  and  subjected  himself  to  his  cradle  ;  and  therefore  it  shall  be 
intended,  that  it  was  made  to  defeat  his  creditors ;  and  if  consideration  of  nature 
of  blood  should  be  a  good  consideration  within  this  proviso,  the  statute  would 
serve  for  little  or  nothing,  and  no  creditor  would  be  sure  of  his  debt.  And  as 
to  the  gifts  made  bona  fide,  it  is  to  be  known,  that  every  gift  made  bona  fide, 
either  is  on  a  trust  between  parties,  or  without  any  trust ;  every  gift  made  on 
a  trust  is  out  of  this  proviso  ;  for  that  which  is  betwixt  the  donor  and  donee, 
cal]ed(/)  a  trust  per  nomen  speciosurn,  is  in  truth,  as  to  all  the  creditors,  a 
fraud,  for  they  are  thereby  defeated  and  defrauded  of  their  true  and  due 
debts.  And  every  trust  is  either  expressed,  or  implied;  an  express  trust 
is,  when  in  the  gift,  or  upon  the  gift,  the  trust  by  word  or  writing  is 
expressed  ;  a  trust  implied  is,  when  a  man  makes  a  gift  without  any  con- 
sideration, or  on  a  consideration  of  nature  or  blood  only  ;  and  therefore,  if  a 
man,  before  the  statute  of  27  H.  8,  had  bargained  his  land  for  a  valuable  con- 
sideration to  one  of  his  heirs,  by  Avhich  he  was  seised  to  the  use  of  the 
bargainee  ;  and  afterwards  the  bargainor,  without  a  consideration,  enfeoffed 
others, (^)  who  had  no.  notice  of  the  said  bargain  ;  in  this  case  the  law  implies 
a  trust  and  confidence,  and  they  shall  be  seised  to  the  use  of  the  bargainee  ; 
*so,  in  the  same  case,  if  the  feoffees,  in  consideration  of  nature  or  blood,  ^  , 
had  without  a  valuable  consideration  enfeoffed  their  sons,  or  any  of  their  L  J 
blood,  who  had  no  notice  of  the  first  bargain,  yet  that  shall  not  toll  the  use  raised 
on  a  valuable  consideration,;  for  a  feoffment  made  only  on  consideration  of 
nature  or  blood,  shall  not  toll  an  use  raised  on  a  valuable  consideration,  but 
shall  toll  an  use  raised  on  consideration  of  nature,  for  both  considerations 
are  in  Eequali  jure,  and  of  one  and  the  same  nature.   (2  Roll.  779.) 

And  when  a  man,  being  greatly  indebted  to  sundry  persons,  makes  a 
gift  to  his  son,  or  any  of  his  blood,  without  consideration,  but  only  of 
nature,  the  law  intends  a  trust  betwixt  them,  scil.  that  the  donee  would, 
in  consideration  of  such  gift  being  voluntarily  and  freely  made  to  him,  and 
also  for  consideration  of  nature,  relieve  his  father,  or  cousin,  and  not  see 
him  want  who  had  made  such  gift  to  him,  vide  33  H.  6,  33,  (7  Co.  39  b.) 
by  Prisot,  if  the  father  enfeoffs  his  son  and  heir  apparent  within  age  bona 
fide,  yet  the  lord  shall  have  the  wardship  of  him  ;  so  note,  valuable  consid- 
eration is  a  good  consideration  within  this  proviso;  and  a  gift  made  bona 
fide,  is  a  gift  made  without  any  trust  either  expressed  or  implied  ;  by 
which  it  appears,  that  as  a'  gift  made  on  a  good  consideration,  if  it  be  not 
also  bona  fide,  is  not  within  the  proviso  ;  so  a  gift  made  bona  fide,  if  it  be 
not  a  good  consideration,  is  not  within  the  proviso ;  but  it  ought  to  be  on  a 
good  consideration,  and  also  bona  fide. 

To  one  who  marvelled  what  should  be  the  reason  that  acts  and  statutes 
are  continually  made  at  every  parliameut  without  intermission,  and  without 
end  ;  a  wise  man  made  a  good  and  short  answer,  both  which  are  well  com- 
posed in  verse. 

Queritur,  ut  crescunt  tot  magna,  volumina  legis  ? 
In  proinptu  causa  est,  crcscit  in  orbe  dolus. 

And  because  fraud  and  deceit  abound  in  .these  days  more  than  in  former 

(/)  6  Co.  72,  b. 

Q)  See  Stat.  1  Rich.  3,  cap.  1,  and  Sanders  on  Uses,  4th  edit.  p.  23.    2  Roll.  779. 


36  smith's    LEADING    CASES. 

times,  it  was  resolved  in  this  case  by  the  whole  court,  that  all  statutes 
made  against  fraud  shall  be  libercdli/  and  benejicially  expounded  to  sup- 
press the  fraud.  Note,  "reader,  according  to  their  opinions  divers  resolu- 
tions have  been  made. 

Between  Pauncefoot  and  Blunt,  in  the  Exchequer  Chamber,  Mich.  35  & 
-,  36  Eliz.,  the  case  was:  Pauncefoet  *being  indicted  for  recusancy, 
L  -•  for  not  coming  to  divine  service,  having  an  intent  to  flee  beyond  sea 
and  to  defeat  the  Q,ueen  of  all  that  might  accrue  to  her  for  his  recusancy 
or  flight,  made  a  gift  of  all  his  leases  and  goods  of  great  value,  coloured 
with  feigned  consideration,  and  afterwards  he  fled  beyond  sea,  and  afterwards 
was  outlawed  on  the  same  indictment;  and  Avhether  this  "gift  should  be 
void  to  defeat  the  queen  of  her  forfeiture,  either  by  the  common  law,  or  by 
an}?-  statute  was  the  question.  And  some  conceived  that  the  common  law, 
which(«)  abhors  all  fraud,  would  make  void  this  gift  as  to  the  Glueen,  vide 
Mich.  12  &  13  Eliz. ;  Dyer(6)  295  ;  4  &  5  P.  and  M.  160.  And  the 
statute  of(c)  50  Eliz.  3,  c.  6,  was  considered  ;  but  that  extends  only  to  relief 
of  creditors,  and  extends  only  to  such  debtors  as  flee  to  sanctuaries,  or  other 
privileged  places  :  but  some  conceived  that  the  stat.  of((/)  3  H.  7,  c.  4, 
extends  to  this  case.  For  although  the  preamble  speaks  only  of  creditors 
yet  it  is  provided  by  the  body  of  the  act  generally,  that  all  gifts  of  goods 
and  chattels  made  or  to  be  made  on  trust  to  the  use  of  the  donor,  shall  be 
void  and  of  no  effect,  but  that  is  to  be  intended  as  to  all  strangers  who  are 
to  have  prejudice  by  such  gift,  but  between  the  parties  themselves  it  stands 
good.  But  it  was  resolved  by  all  the  Barons,  that  the  stat.  13  Eliz.  c.  5,(c) 
extends  to  it ;  for  thereby  it  is  enacted  and  declared,  that  all  feoffinents,  gifts 
grants,  &c.,  "  to  delay,  hinder,  or  defraud  creditors  and  others  of  their 
just  and  lawful  actions,  suits,  debts,  accounts,  damages,  penalties,  for- 
feitures, heriots,  mortuaries  and  reliefs,."  shall  be  void,  &c.  So  that  this  act 
doth  not  extend  only  to  creditors,  but  to  all  others  rvhoJiad  cause  of  ac- 
tion, or  suit,  or  any  penalty,  or  forfeiture,  ^-c. 

And  it  IV as  resolved,  that  this  ivord  forfeiture  shoidd  not  be  intended 
only  of  a  forfeiture  of  an  obligation,  recognizance,  or  such  like,  (as  it 
was  objected  by  some,  that  it  should,  in  respect  that  it  comes  after  damage 
and  penalty,)  but  also  to  everything  which  shall  by  law  be  forfeit  to  the 
king  or  subject.  And  therefore,  if  a  man,  to  prevent  a  forfeiture  for  felony 
or  by  outlawry,  makes  a  gift  of  all  his  goods,  and  afterwards  is  attained  or 
outlawed,  these  goods  aTe{f\  forfeited  notwithstanding  this  gift,  the  same 
law  of  recusants,  and  so  the  statute  is  expounded  beneficially  to  suppress 
-  ^  fraud.  Note  well  this  word(g')  (declare)  in  the  act  *of  13  Eliz., 
L  by  which  the  parliament  expounded  that  this  Avas  the(A)  common 

law  before.     And  according  to  this  resolution  it  was  decreed,  Hil.  36  Eliz., 
in  the  Exchequer  Chamber. 

Mich.  42  &  43i  Eliz.  in  the    Common    Pleas,  on  evidence  to  a  jury, 

Co)  3  Co.  78,  a.  (b)  3  Co.  78,  a.  b.     Dver,  29.'3,  pi.  8,  9, 10,  &c.     Lane,  44. 

(c)  Co.  Lit.  76,  a.  (d)  Cro.  El.  201,  293.     Lane,  45. 

(e)  Co.  Lit.  3,  b.  7G,  a.  290,  a.  b.  3  Inst.  152.  5  Co.  GO,  a.  b.  6  Co.  18,  b.  10  Co.  65. 
b.  Co.  Ent.  162,  a.  1  Leon.  47,308.309.  2  Leon.  8,  9,  223.  3  Leon.  57.  Latch,  222. 
2  Roll.  Rep.  493.  Palm.  415.  Cr.  El.  23,3,  234,  645,  810.  Cr.  Jac.  270.  2  Bulst.  226. 
Hob.  72,  166.  Yclv.  196,197.  1  Biownl.  11.  Dyer,  295  pi.  17.  351,  pi.  23.  Rastal 
Fraudulent  Deeds.     1  Rast.  Ent.  207,  b.     Lane.  47. 103.  Moor,  638.     Doct.  pi.  200. 

(/)  Co.  Lit.  250,  b.  (g)  Co.  Lit.  76,  a.  290,  b.  (A)  Hard.  397. 


TWYNe's     CASE.  37 


jtween  Standcn(f<)  and  Biillock,  these  points  were  resolved  by  the  whole 
)urt  on  the  statute  of  27  -Eliz.  c*  4,     Walmsley,  J.,  said,  that  Sir  Christ. 


bet\ 

CO  I 

Wray,  late  C.  J.  of  England,  reported  to  him,  that  he  and  all  his  compan- 
ions of  the  King's  Bench  were  resolved,  and  so  directed  a  jury  on  evidence 
before  them;  that  where  a  man  had  conveyed  his  land  to  the  use  of  himself 
for  life,  and  afterwards  to  the  use  of  divers  others  of  his  blood,  with  a  future 
power 'of  revocation,  as  after  such  feast,  or  after  the  death  of  such  one  ;  and 
afterwards,  and  before  the  power  of  revocation  began,  he,  for  valuable  con- 
•  sideration,  bargained  and  sold  the  land  to  another-and  his  heirs  ;  this  bargain 
and  sale  is  within  the(6)  remedy  of  the  said  stat.  For  although  the  stat. 
saith,  "  the  said  first  conveyance  not  by  him  revoked,  according  to  the 
power  by  him  reserved,"  which  seems  by  the  literal  sense  to  be  intended 
of  a  present  power  of  revocation,  for  no  revocation  can  be  made  by  force  of 
a  future  power  until  it  comes  in  esse  ;  yet  it  was  held  that  the  intent  of  the 
act  was,  that  such  voluntary  conveyance  which,  was  originally  subject  to  a 
power  of  revocation,  be  it  in  prcesenti,  or  in  future,  should  not  stand  against 
a  purchase  bona  fide"  for  a  valuable  consideration  f  and  if  other  construction 
should  be  made,  the  said  act  would  serve  for  lutle  or  no  purpose,  and  it 
would  be  no  difficult  matter  to  evade  it ;  so  if  A.  had  reserved  to  himself  a 
power  or  revocation  with  the  assent  of  B.,  and  afterwards  A.  bargained  and 
sold  the  land  to  another,  this  bargain  and  sale  is  good,  and  within  the  remedy 
of  the  said  act ;  for  otherwise  the  good  provision  of  the  act,  by  a  small  addi- 
tion, and  evil  intention,  would  be  defeated. (c) 

And  on  the  same  reason  it  was  adjudged,  38  Eliz.  in  the  Common  Pleas, 
between  Lee  and  his  wife  executrix  of  one  Smith  plaintiff,  and  Mary((/) 
Colshil,  executrix  of  Thos.  Colshil,  defendant  in  debt  on  an  obligation  of 
1000  marks, Hot.  1707.  The  case  was,  Colshil  the  testatoT  had.  the  office 
of  the  Glueen's  customer,  by  letters-patent,  to  him  and  his  deputies ;  and  by 
indenture  between  him  and  *Smith,  the  testator  of  the  plaintiff,  and  ^  -, 
for  600^  paid,  and  100/.  per  ann.  to  be  paid  during  the  life  of  Col-  L  -■ 
shil,  made  a  deputation  of  the  said  office  to  Smith;  and  Colshil  covenanted 
with  Smith,  that  if  Colsliil  should  die  before  him,  that  then  his  executors 
should  repay  him  300/.  And  divers  covenants  were  in  the  said  indenture 
concerning  the  said  office,  and  the  enjoying  of  it ;  and  Colshil  was  bound  to 
the  said  Smith  in  the  said  obligation  to  perform  the  covenants ;  and  the 
breach  was  alleged  in  the  non-payment  of  the  300/.,  forasmuch  as  Smith 
survived  Colshil ;  and  although  the  said  covenant  to  repay  the  300/.  was 
lawful,  yet  forasmuch  as  the  rest  of  the  covenants  were  against  the  statute 
of(e)  5  E.  6,  cap.  16,  and  if  the  addition  of  a  lawful  covenant  should  make 
the  obligation  of  force  as  to  that,(y')  the  statute  would  serve  for  little  or  no 
purpose  ;  for  this  cause  it  was  adjudged,  that  the  obligation  was  utterly  void. 

2.  It  was  resolved,  that  if  a  man  hath  power  of  revocation,  and  afterwards 

(a)  Moor,  605.  615.     Bridgm.  23.     5  Co.  60,  b.     Palm.  217.     Lane,  22.     2  Jones,  95. 

lb)  1  Sid.  133.  (c)  Sed  vide  2  Show.  46,  and  post  13,  in  notis. 

((/)  2  And.  55.  107.     Goldb.  210.     Cro.  El.  529.     Moor,  857.     Ley,  2.  75.  79. 

(f)  Style,  23.  Cro.  El.  520.  Cro.  Jac.  269.  Hob.  75.  Co.  Lit.  234,  a.  12  Co.  78.  3 
Inst.  148.  154.  3  Keb.  26.  659,  GGO.  717,  718.  1  Brovvnl.  70,  71.  2  And.  55.  107.  3 
Bulst.  91.     3  Leon.  33.     1  Rol.  Rep.  157.  256.     Goldsb.  180. 

(/■)  2  And.  56,  57.  108.  1  Mod.  Rep.  35,  36.  Hob.  14.  11  Co.  27,  b.  2  Rnlfc's,  28. 
Co.  Lit.  224,  a.  2  Jones,  90,  91.  Cro.  El.  529,  530.  Cro.  Car.  338.  Godb.  212,  213.  1 
Browiil.  64.    Plowd.  68,  b.    Moor,  856,  857.    Ley,  75.  79. 


38  smith'sleadingca^es. 

to  the  intent  to  defraud  a  purchaser,  he  levies  a  («)  fine,  or  makes  a  feoff- 
ment, or  other  conveyance  to  a  stranger,  by  winch  he  extinguishes  his 
power,  and  afterwards  bargains  and  sells  the  lands  to  another  for  a  valuable 
consideration,  the  bargainee  shall  enjoy  the  land,  for  as  to  him,  the  fine, 
feoffment,  or  other  conveyances  by  which  the  condition  was  extinct,  was 
void  by  the  said  act ;  and  so  the  first  clause,  by  which  all  fraudulent  and 
covenous  conveyances  are  made  void  as  to  purchasers,  extend  to  the  last 
clause  of  the  act,  scil.,  when  he  who  makes  the  bargain  and  sale  had  power 
of  revocation.  And  it  was  said,  that  the  statute  of  Eliz.  hath  made  voluntary 
estates  made  with  power  of  revocation  as  to  purchasing  in  equal  degree 
with  conveyances  made  by  fraud  and  covin  to  defraud  purchasers. 

Between(i)  Upton  and  Basset  in  trespass,  Trin.  37  Eliz.  in  the  Common 
Pleas,  it  was  adjudged,  that  if  a  man  makes  a  lease  for  years  by  fraud  and 
covin,  and  afterwards  makes  another  lease  bona  fide,  but  without  fine  or 
rent  reserved,  that  the  second  lease  should  not  avoid  the  first  lease. 

For  first  it  was  agreed,  that  by  the  common  law  an  estate  made  by  fraud 
should  be  avoided  only  by  him  who  had  a  former  right,  title,  interest,  debt, 
or  demand,  as  by  33  H.  6,  a  sale  in  open(c)  market  by  covin  shall  not  bar 
a  right  w^hich  is  more  ancient ;  nor  a  covenous  gift  shall  not  defeat  execution 

^  -,  *in  respect  of  a  former  debt,  as  it  is  agreed  in  22  Ass.  72  ;  but  he 
L  -^  who  hath  right,  title,  interest,  debt  or  demand  more  puisne  shall  not 
avoid  a  gift  or  estate  precedent  by  fraud  by  the  common  law. 

2.  It  teas  resolved,  that  no  purchaser  should  avoid  a  precedent  convey- 
ance made  by  fraud  and  covin,  but  he  ivho  is  a{d)  purchaser  for  money  or 
other  valuable  consideration,  for  although  in  the  preamble  it  is  said  (for 
money  or  other  good  consideration),  and  likewise  in  the  body  of  the  act  (for 
money  or  other  good  consideration),  yet  these  words  (good  consideration) 
are  to  be  intended  only  of  valuable  consideration,  and  that  appears  by  the 
clause  which  concerns  those  who  had  power  of  revocation,  for  there  it  is  said, 
for  money  or  other  consideration  paid  or  given,  and  this  (paid)  is  to  be 
referred  to  (money),  and  (given)  is  to  be  referred  to  (good  consideration),  so 
the  sense  is  for  money  paid,  or  other  good  consideration  given,  which  words 
exclude  all  consideration  of  nature  or  blood,  or  the  like,  and  are  to  be  inten- 
ded only  of  valuable  considerations  which  may  be  given  :  and  therefore  he 
who  makes  a  purchase  of  land  for  a  valuable  consideration,  is  only  a  pur- 
chaser within  the  statute.  And  this  latter  clause  doth  well  expound  these 
words  (other  good  consideration),  mentioned  before  in  the  preamble  and 
body  of  the  act. 

And  so  it  was  resolved,  Pasch.  32  Eliz.,  in  a  case  referred  out  of  the 
Chancery  to  the  consideration  of  Wyndham  and  Periam,  Justices  ;  between 
JohnNedham  plaintiff,  and  Beaumont,  Serjeant-at-law,  defendant  ;(e)  where 
the  case  was,  Hen.  Babington,  seised  in  fee  of  the  manor  of  Lit-Church,  in 
the  county  of  Derby,  by  indenture,  10  Feb.  8  Eliz.  covenanted  with  the 
Lord  Darcy  for  the  advancement  of  such  heirs  male,  as  well  as  those  he  had 
begot,  as  those  he  should  afterwards  beget  on  the  body  of  Mary  then  his 
wife  (sister  to  the  said  Lord  Darcy)  before  the  feast  of  St.  John  Baptist  then 

(o)  1  Co.  112,  b.  171,  a.  Co.  Lit.  237,  a.  Hob.  337,  338.  Moor,  60.'5.  2  Rol.  Rep.  337. 
496.     Wincli.65.  (h)  Co.  Ent.  676,  b.  no..  19.     Cro.  El.  441,  41.5.     Lane,  45. 

(c)  Antca,  78,  b.  Plow.  46,  b.  55,  a.  Fitz.  Replic.  15.  Br.  Trespass.  26.  Br.  CoUu- 
Bion,  4.     Br.  Property,  6.     2  Inst.  713.     M  II.  8,  8,  b.     33  H.  6,  5,  a,  b. 

(</)  Cro.  El.  445.  (e)  1  And.  233.    Nedliara  and  Beaumont's  case. 


twyne's  case. 


39 


next  following,  to  levy  a  fine  of  the  said  manor  to  the  use  of  the  said  Henry 
for  his  life,  and  afterwards  to  the  use  of  the  eldest  issue  male  of  the  bodies 
of  the  said  Henry  and  Mary  begotten,  in  tail,  &c.,  and  so  to  three  issues  of 
their  bodies,  &c.,  with  the  remainder  to  his  right  heirs.  And,  afterwards, 
8  Maii,  ann.  8  Eliz.,  Henry  Babington,  by  fraud  and  covin,  to  defeat  the 
said  covenant,  made  a  lease  of  the  said  manor  for  a  great  number  of  years, 
to  Robert' Heys  ;  *and  afterwards  levied  the  fine  accordingly:  and  ^q-. 
on  conference  had  with  the  other  justices,  it  was  resolved,  that  although  L  .-■ 
the  issue  was  a  purchaser,  yet  he  was  not  a  purchaser  in  vulgar  and  com- 
mon intendment ;  also  consideration  of  blood,  natural  affection,  is  a  good 
consideration,  but  not  such  a  good  consideration  which  is  intended  by  the 
statute  of  Eiiz.,  for(/)  a  valuable  consideration  is  only  a  good  consideration 
within  that  act.  In  this  case,  Anderson,  C.  h,  of  the  Common  Pleas,  said, 
that  a  man  who  was  of  small  understanding,  and  not  able  to(o-)  govern  the 
lands  which  descended  to  him,  and  being  given  to  riot  and  disorder,  by 
mediation  of  his  friends,  openly  conveyed  his  lands  to  them,  on  trust  and 
confidence'  that  he  should  take  the  profits  for  his  maintenance,  and  that  he 
should  not  have  the  power  to  waste  and  consume  the  same  :  and  afterwards, 
he  being  seduced  by  deceitful  and  covenous  persons,  for  a  small  sum  of 
money  bargained  and  sold  his  land,  being  of  great  value ;  this  bargain, 
although  it  was  for  money,  was  holden  to  be(/t)  out  of  this  statute,  for  this 
act  is  made  against  all  fraud  and  deceit,  and  doth  not  help  any  purchaser, 
who  doth  not  come  to  the  land  for  a  good  consideration  lawfully  and  without 
fraud  or  deceit ;  and  such  conveyance  made  on  trust  is  void  as  to  him  who 
purchases  the  land  for  a  valuable  consideration  bona  fide,  without  deceit  or 
cunning. 

And  by  the  judgment  of  the  whole  court  Twyne  was  convicted  of  fraud, 
and  he  and  all  the  others  of  a  riot. 


Statute  13  Eliz.  c.  5,  (made  perpet- 
ual by  29  Eliz.  c.  5,)  after  reciting  that 
feoffments,  gifts,  grants,  alienations, 
conveyances,  bonds,  suits,  judgments, 
and  executions  have  been  contrived  of 
malice,  fraud,  covin,  collusion,  &c.,  to 
delay,  hinder,  or  defraud  creditors  or 
others  of  their  just  and  lawful  actions, 
suits,  debts,  accounts,  damages,  &c., 
proceeds  to  enact  that  every  feoffment, 
Sic.  of  lands,  tenements,  hereditaments, 
*  goods  and  chattels,  or  any  of  them,  by 
writing  or  otherwise,  and  "all  and  every 
bond,  suit,  judgtnent  and  execution 
made  for  any  intent  and  purpose  before 
declared  and  expressed,  shall  be  as 
against  that  person,  his  heirs,  succes- 
sors, executors,  Sic,  whose  actions, 
suits,  &c.  are  or  might  be  in  anywise 
disturbed,  liindered,  delayed  or  defraud- 
ed, utterly  void.     By  sect.  6,  however. 


the  act  is  not  to  extend  to  any  estate  or 
interest  in  lands,  &c.  on  good  considera- 
tion and  bona  fide,  lawfully  conveyed  to 
any  person,  &c,  not  having  notice  of 
such  covin,  &c.  When  it  is  attempted 
to  invalidate  a  transfer  of  goods  by 
showing  it  to  fall  within  the  provisions 
of  this  .statute,  a  question  arises  proper 
for  tiie  consideration  of  a  jury,  who  are 
to  say  whether  the  transaction  was  bona 
fide,  or  a  contrivance  to  defraud  credi- 
tors. Where  a  bill  of  sale  of  chattel  pro- 
perty is  executed  by  a  debtor  to  his  cre- 
ditor, purporting  to  convey  the  property 
to  the  vendee  immediately,  yet  |-%ia-| 
*the  vendor  is  after  its  execu-  ^  -1 
tion,  suffered  to  remain  in  possession, 
a  very  strong  presumption  of  fraud 
arises;  for,  aa  Lord  Coke  remarks  in 
the  principal  case,  continuance  in  pos- 
session by  the  donor  is  a  sign  of  a  trust 


(/)  2  Roll.  Rep.  305, 306. 


ig)  Cro.  El.  445. 


Qi)  Ibid. 


40 


SMITH    S    LEADI-NG    CASES. 


for  his  benefit,  and  therefore  in  Edwards 
V.  Harben,  2  T.  R.  587,  where  a  credi- 
tor took  an  absolute  bill  of  sale  of  the 
goods  of  his  debtor,  but  agreed  to  leave 
them  in  his  possession  for  a  limited  time, 
and  in  the  mean  time  the  debtor  died, 
whereupon  the  creditor  took  and  sold  the 
.     the  goods,  he  was  held  liable  to  be  sued  as 
executor  do  son  tort  for  the  debts  of  the 
deceased.     See  Shears  v.  Rogers,  3  B. 
&    Ad.    363.     Indeed,   in  Edwards   v. 
Harben  the  court  went  so  far  as  to  say, 
"  This  has  been   argued  as  a   case  in 
which  the  want  of  possession   is  only 
evidence  of  fraud,  and  that  it  was  not 
such  a  circumstance,  per  se,  as  makes 
the  transaction  fraudulent   in  point  of 
law.     That  is  the  point  we  have  consid- 
ered, and  we  are  all  of  opinion  that  if 
there  be  nothing  hut  the  absolute  con- 
veyance without  the  possession,  that,  in 
point  of  law,  is'  fraudulent."     See  also 
Bamford  v.  Baron,  ibid,"  in  notis  ;  Reid  v. 
Blades,  5  Taunt.  212 ;  Paget  v.  Perchard, 
1  Esp.  205  ;  Martin  v.  Podger,  2  W.  Bl. 
702.     Nay,  Lord  Ellcnborough  thought 
that  if  the  vendor  remained  in  possession 
of  the  goods  after  the  sale  thereof,  the 
case  was  not  bettered  by  the  vendee's 
remaining  in  possession  along  with  him ; 
and,  therefore,  in  Wordall  v.   Smith,  1 
Camp.  333,  where  an  action  was  brought 
against  the  sheriff  of  Middlesex,  for  a 
false  return  to  a  writ  of  fieri  facias  sued 
out  by  the  plaintiff  against  John  Mason, 
and  returned  by  the  sheriff  nulla  bona, 
and  upon  the  trial  it  appeared  that  Ma- 
son had,  before  the  issuing  of  the  fi.  fa., 
assigned  all    his  effect   to   a    creditor, 
whose  servant  was  immediately  put  into 
the  house,  and  remained  conjointly  with 
Mason,    Lord   EUenborough  directed  a 
verdict  for  the  plaintifl^,  saying,  "  To  de- 
feat the  execution  there  must  have  been 
a  bona  fide  substantial  change  of  posses- 
(      sion.     It  is  a  mere  mockery  to  put  an- 
1      other  person  in  to  take  possession  jointly 
Y    with  the  former  owner  of  the  goods.     A 
I    concurrent  possession  with  the  assignor 
is  colourable ;  there  must  be  an  exclusive 
possession  under  the  assignment,  or  it 
is  fraudulent  and  void,  as  against  credi- 
tors." 

However,  though  in  Edwards  v.  Har- 
ben it  was  laid  down,  in  the  express 
terms  above  stated,  that  an  absolute  sale 
without  delivery  of  possession  was,  in 
point  of  law  fraudulent,  tlie  tendency  of 
the  courts  has  lately  been  to  qualify  that 
doctrine,  and  leave  the  whole  circum- 
stances of  each  case  to  a  jury,  bidding 


them  decide  whether  the  presumption  of 
fraud  deducible  from   the  absence  of  a 
transmutation  of  possession  shall  prevail. ' 
And,  indeed,  h  ought   to' be  remarked, 
that  even  in    Edwards   v.  Harben,  the 
words  of  Buller,  J.,  were,  "  If  there  be 
nothing   but   an  absolute   conveyance, 
without  the  possession,  that  in  point  of 
law  is  fraudulent;"  by  which  his  lord- 
ship may   have   intended,   that   where 
there  was  nothing,  i.  e.  no  facts  what- 
ever appearing  in  the  case  except  the 
absolute  conveyance  and  the  non-deliv- 
ery, that  then    the   inference  of  fraud 
would  be  so  strong,  that  a  jury  ought  not 
to  resist  it.     But  it  is  very  different  in 
cases  where,  although  the  conveyance 
is  absolute,  and   the  possession  has  ngt 
passed,  still  there  are  surrounding  cIf- 
cumstances  which  show  that  a  fraud  may 
not  have  been  intended ;  in  such  cases 
it  cannot  properly  be  said,  that  there  is 
"  nothing  but  an  absolute  conveyance 
without  the  possession"     Therefore  in 
Latimer  v.  Batson,  4  B.  &  C.  6.52,  where 
the  sheriff  seized  the  goods  of  the  Duke 
of  Marlborough,  and  sold  them  to  the" 
judgment  creditor,  who  sold  them,  to  the 
plaintiff",  who  put  a  man  in  possession, 
but  allowed  them  to  remain-in  the  Duke's 
mansion  and  be  used  by  him  as  before, 
it  was  held  that  it  was  properly  left  to 
the  jury  to  say  whether  the  sale  was  a 
bona  fide  sale  for  money  paid  by  the 
plaintiff';  and  that,  if  so,  tliey  should  find 
a  verdict  for  him.     Here  the  goods  had 
been  seised  by  the  sheriff",  who  is  a  pub- 
lic officer,  and  his   seizure  a  public  act, 
so  that  the  transaction  was  accompanied 
with  some  notoriety,  and  as  the  secrecy 
of  the  transfer  is  a  badge  of  fraud  (see 
the  principal  case,  and  Mace  v.  Cammel, 
Lofft,  782,)  so  is  the  notoriety  of  the 
transfer  always  a  strong  circumstance 
to  rebut  the  presumption  thereof.     See 
Latimer  v.  Batson  ;  Leonard  v.  Baker, 
1  M.   &  S.  251  ;  Watkins  v.  Birch,  4 
Taunt.  823  ;  Jezeph  v.  Ingram,  8  Taunt. 
838;  Kidd  v.  Rawlinson,  2  B.  &  P.  59; 
Cole  v.  Davies,  1  Lord  Raym.  724. 


[*11] 


*It  may,  therefore,  be  safely 
laid  down,  that,  under  almost  any 
circumstances,  the  question, _/?•«!/(/ or  no 
fraud,  is  one  for  the  consideration  of  the 
jury.  See  the  judgments  in  Martindale 
V.  Booth,  3  B.  &  Adol.  498,  where  seve- 
ral  cases  establishing  this  point  are  cit- 
ed ;  and  sec  in  Carr  v.  Burdiss,  5  Tyrvvh. 
310,  the  expressions  of  Parke,  B.,  Dewey 
V.  Bayntun,  0  East,  257 ;  Reed  v.  Blades, 
5  Taunt.  212.     ["  The  modern  doctrine 


TWYNES    CASE. 


41 


is,  that  it  must  be  left  to  the  jury  to 'say, 
whether  the  continuance  in  possession 
is  fraudulent  or  not.  It  is  a  strong  fact, 
but  not  conclusive."  Per  Tindal,  C.  J. 
in  Lindon  v.  Sliarp",  G  M.  &  Gr.  895, 
898.] 

The  above  observations  apply  to  cases 
where  the  conveyance  is  absolute,  and 
there  is  no  transmutation  of  possession, 
but  where  the  conveyance  is  not  absolute 
to  take  efl'ect  immediately,  as,  for  in- 
stance, whore  it  is  by' way  of  mortgage, 
and  the  mortgagee  is  not  to  take  posses- 
sion till  a  default  in  paymentof  the  mort- 
gage money,  there,  as  the  nature  of  the 
transaction  does  not  call  for  any  trans- 
mutation of  possession,   the  absence  of 
such  transmutation  seems  to  be  no  evi- 
dence of  fraud.     "  We  consulted,"  says 
Buller,  J.,  in  Edwards  v.  Harben,  "  with 
all  the  judges,  who  are  unanimously  of 
opinion,  that  unless   possession  accom- 
panies and  follows  the  deed  it  is  fraudu- 
lent and  void  ;  I  lay  stress  on  the  words 
accompanies  and  follows,  because  I  shall 
mention  some  cases  where,  though  pos- 
session was  not  delivered  at  the  time, 
the  conveyance  was  held  not  to  be  frau- 
dulent."   And  then  his  lordship  proceeds 
to    point    out    the    distinction    between 
"  deeds,  or  bills  of  sale  which  are  to  take 
place  immediately,  and  those  which  are 
to  take  place  at  some  future  time;  for, 
in  the  latter  case,  the  possession  con- 
tinuing in   the  vendor  till  that  future 
time,  or  till  that  condition  is  performed, 
is  consistent  with  the  deed,  and  such 
possession  comes  within  the  rule  as  ac- 
companying and  folloicing  the  deed." 
See  B.  N.  P.  258,  and  Cadogan  v.  Ken- 
nett,  Cowp.  436.     Minshull  v.  Lloyd,  2 
M.  &,  W.  450.     This  doctrine  was  af- 
firmed and  acted  upon  in  the  late  case 
•  of  Martindale  v.  Booth,  3  B.  &  Adol. 
505,  and  in  Reed  v.  Wilmot,  7  Bingh. 
577.  Cases  may,  and  probably  will,  arise, 
in  wiiich  it  may  be  attempted  to  take 
advantage  of  this  doctrine  for  the  pur- 
poses of  fraud,  by  introducing  terms  con- 
sistent with  the  continuing  possession  of 
•the  vendor  into  deeds  really  intended 
not  to  operate  as  a  bona  fide  transfer  of 
property,  but  to  enure  for  the  vendee's 
protection.     Insuch  cases,  however,  the 
collusion,  as  soon  as  discovered,  would 
be- held  to  invalidate  the  deed  as  much 
as  if  the  conveyance  purported  upon  the 
face  of  it  to-be  absolute,  for  tiie  presence 
.or  absence  of  fraud  depends  on  the  mo- 
tives of  the  party  making  the  convey- 
ance.    See  Nunn  v.  Wilson,  8  T.  R. 
521 ;  per  Le  Blanc,  J. 


There  are  some  cases,  that  for  instance 
of  the  sale  of  a  ship  at  sea,  in  which  an 
actual  delivery  being  impossible,  no  pre- 
sumption of  fraud  can  possibly  arise  from 
the  substitution  of  one  merely  symbolical. 
Atkinson  v.  Maling,  2  T.  R.  472. 

It  will  be  observed  that  the'statute  of 
Elizabeth  only  declares  the  fraudulent 
conveyance  to  be  void,  "as  against  that 
person,  his  heirs,  successors,  executors?, 
&LC.,  who  are-,  or  might  be  in  any  wise 
disturbed,  hindered,  delayed  or  defraud- 
ed." Such  a  conveyance  is  good  as 
against  the  party  executing  it,  Robinson 
V.  M'Donnel,  2  B.  &  A.  134-;  and  also 
as  against  any  other  person  privy  and 
consenting  to  it.  Steel  v.  Brown  and 
Parry,  1  Taunt.  381. 

In  the  principal  case,  Pierce,  the 
grantor,  was  indebted  to  the  grantee, 
Tvvyne,  which  debt  would  have  been 'a 
suflicient  consideration  to  support  a  bona 
fide  transfer  of  the  goods,  and  the  ground 
on  which  the  court  proceeded  was  not 
that  there  was  no  sufficient  consideration 
to  sustain  a  grant  by  Pierce  to  Tvvyne, 
but  that  the  secrecy,  the  non-delivery, 
the  clausulae  inconsuela?,  &c.,  raised  a 
presumption  that  the  whole  transaction 
was  collusive  and  a  juggle,  and  though 
purporting  to  be  a  sale  was,  in  reality, 
the  creation  of  a  trust  for  the  benefit  of 
Pierce  ;  to  use  their  own  words,  "  it  was 
resolved  that,  notwithstanding  here  was 
a  true  debt  due  to  Twyne,  and  a  good 
consideration  of  the  gift,  yet  it  was  not 
vvithin  the  proviso  of  the  said  Act  of 
13  Eliz.,  by  which  it  was  provided  that 
the  said  act  shall  not  extend  to  any 
estate  or  interest  in  lands,  &c.,  goods  or 
chattels,  made  on  good  consideration  and 
bona  fide;  for  although  it  is  on  a  true 
and  good  consideration  yet  it  is  not  bona 
fide,  for  no  gift  shall  be  deemed  to  be 
bona  fide,  within  the  said  proviso,  which 
is  accompanied  with  any  trust."  In 
other  words,  although  a  debtor  has  a 
right  to  prefer  one  creditor  to  another, 
and  by  making  a  transfer  of  his  r  ^-.c,  -i 
property  to  *one  favoured  claim-  <-  i 
ant  to  defeat  the  other,  provided  he  do 
so  in  an  open  manner,  and  without  any 
further  object  than  his  act  upon  the  face 
of  it  imports; — still  the  law  will  not 
allow  a  creditor  to  make  use  of  his 
demand  to  shield  his  debtor  ;  and,  while 
he  leaves  him  in  statu  quo  by  forbearing 
to  enforce  the  assignment,  to  defeat  the 
other  creditors  by  insisting  upon  it. 
Thus,  (to  illustrate  this  position  by  Lord 
Coke's  words  in  the  principal  case,)  "  if 
a  man  be  indebted  to  five  several  persons 


42 


SMITHS    LEADING    CASES. 


in  the  several  sums  of  20Z,,  and  hath 
goods  of  the  value  of  20/.,  and  makes  a 
gift  of  all  his  goods  to  one  of  them  in 
satisfaction  of  his  debt,  hut  there  is  a 
trust  between  them  that  the  donee  shall 
deal  favourably  with  him  in  regard  of  his 
poor  estate,  either  to  permit-  the  donor, 
or  some  other  person  for  him,  or  for  his 
benefit,  to  use  or  have  possession  of  them, 
and  is  contended  that  he  shall  pay  him 
his  debt  when  he  is  able;  this  shall  not 
be  called  bona  fide  within  the  said  pro- 
viso, for  the  proviso  sailh  on  a  good  con- 
sideration and  bona  fide,  so  a  good  con- 
sideration doth  not  suffice  if  it  be  not  also 
bona  fide."  There  is,  however^  no  doubt 
but  that  a  debtor  (so  he  be  not  a  trader 
in  contemplation  of  bankruptcy)  may 
openly  prefer  one  creditor  to  the  rest, 
and  transfer  property  to  him  even  after 
the  others  have  commenced  their  actions. 
Pickstock  V.  Lyster,  3  M.  &  S,  371; 
.  Holbird  v.  Anderson,  5  T.  R.  235 ;  Meux 
v.  Howell,  4  East,  1  ;  Eastwick  v.  Cail- 
laud,  5  T.  R.  420;  Bowen  v.  Bramidge, 
6  C.  &  P.  142.  Goss  v.  Neale,  5  B.  M. 
19.  See  however  the  late  case  of  Owen 
V.  Body,  5  Ad.  &  £11.  22.  An  assign- 
ment of  all  his  effects  in  trust  for  his 
wife,  by  a  man  about  to  be  tried  for 
felony,  has  been  held  to  come  within  this 
statute,  and  to  be  fraudulent  and  void  as 
against  the  crown.  Shaw  v.  Bean,  1 
Stark,  319  ;  Jones  v.  Ashurst,  Skinn. 
357;  Morewood  v.  Wilkes,  6  C.  &  P. 
145;  and  Panncefoot's  case,  sup.  pp.  4, 
5.  Vide  R.  v.  Bridger,  1  M.  &  W.  145. 
A  deed  has  been  held  void  which  pur- 
ported to  create  a  trust  for  all  the  credi- 
tors, but  contained  terms  which  would, 
if  accepted,  have  imposed  on  them  the 
liability  of  partners.  Owen  v.  Body,  5 
Ad.  &  Ell.  22. 

It  has  been  said  by  Lord  Mansfield, 
that  "  the  principles  of  the  common  law, 
as  now  universally  known  and  under- 
stood, are  so  strong  against  fraud  in  every 
shape,  that  the  common  law  would  have 
attained  every  end  proposed  by  stat.  13 
Eliz.  c.  5."  The  question,  whether  a 
gift  be  fraudulent  within  the  meaning  of 
this  statute,  is  very  difl^erent  indeed  from 
the  question,  whether,  if  made  by  a 
trader,  it  would  be  fraudulent,  and  an 
act  of  bankruptcy  within  the  meaning  of 
the  bankrupt  act.  The  latter  question 
may  be  answered  in  each  case  by  refer- 
ence to  one  of  tiie  following  three 
Rules: — 

1.  Any  transfer  which  is  fraudulent 


within  the  meaning  "of  the  statute  of 
Elizabeth,  is  also  fraudulent,  and  an  act 
of  bankruptcy,  under  the  bankrupt  act. 

2.  Any  conveyance  to  a  creditor  by  a 
trader,  of  his  whole  property,  or  of  the 
whole  with  an  exception  merely  nominal, 
in  consideration  of  a  by-gone  and  pre- 
existing debt,  though  not  fraudulent 
within  the  statute  of  Elizabeth,  is  frau- 
dulent under  the  bankrupt  act,  and  an 
act  of  bankruptcy. 

3.  A  transfer  by  a  trader  of  part  of  his 
property  to  a  creditor,  in  consideration  of 
a  by-gone  and  pre-existing  debt,  though 
not  fraudulent  within  the  statute  of 
Elizabeth,  is  fraudulent,  and  an  act  of 
bankruptcy  under  the  bankrupt  act,  if 
made  voluntarily,  and  in  contemplation 
of  bankruptcy. 

It  has  been  laid  down  that  a  voluntary 
conveyance  is  not  fraudulent  against  cre- 
ditors within  the  loth  Eliz.,  unless  the 
party  making  it  was  indebted  at  the  time, 
or  nearly  so :  Ilolcroft's  case.  Dyer, 
294  (6) ;  Stephen  v.  Olive,  2  Bro.  R.  9  ; 
Lush  v.  Wilkinson,  5  Ves.  384;  B.  N. 
P.  257;  and  indeed  Lord  Alvanley  has 
said  that  to  invalidate  a  settlement  made 
after  marriage,  by  the  13th  Eliz.  the 
settlor  must  be  in  insolvent  circumstan- 
ces, 5  Ves.  384  ;  see  Shears  v.  Rogers, 
3  B.  &,  Ad.  362  ;  Battersbee  v.  Farring- 
ton,  1  Swanst.  106;  Russell  v.  Ham- 
mond, 1  Atk.  15 ;  Middlecome  v.  Mar- 
low,  2  Atk.  220;  Lord  Townsend  v. 
VVyndham,  2  Ves.  1.  10.  In  some  in- 
stances, however,  a  contrary  doctrine  has 
prevailed ;  see  B.  N.  P.  257 ;  and  it 
would  be  difficult  to  contend  that  a  con- 
veyance proved  to  be  made  ivith  the 
express  intent  to  defraud  even  future 
creditors  would  not  be  void  as  against 
them,  indeed  that  very  point  seems  in- 
volved in  Tarback  v.  Marbury,  2  Vern. 
510,  and  Hiingerford  v.  Earle,  2  Vern, 
261.  [See  Gale  v.  Williamson,  8  M.  & 
W.  405.]  It  has  been  held  to  make  no 
diflcrence  that  the  debt  was  contracted, 
not  by  the  party  making  the  conveyance 
but  by  his  ancestor  from  whom  he  deriv- 
ed the  estate,  *Apharry  v.  Bo-  r  ^.-,  g  -i 
dingham,  Cro.  Eliz.  56;  Gooch's  '-  -■ 
case,  5  Rep.  60;  and  as  a  t>andulent 
conveyance  by  the  heir  is  void,  so  is  one 
by  an  executor  or  administrator  of  the 
property  of  the  deceased,  and  he  is 
chargeable  with  what  he  so  conveys  as 
assets.  Doe  v.  Fallows,  2  Tyrwh.  460, 
2  C.  ct  J.  481.  And  property  fraudu- 
lently conveyed  by  the  deceased  himself 


TWYNES     CASE. 


43 


is,  in  contemplation  of  law,  assets  for 
payment  of  his  debts  in  tlie  hands  of  his 
executors.  Shears  v.  Rogers,  3  B.  & 
Ad.  363.  By  sec.  3  ofst.  13  Eliz.,  par- 
ties to  the  fraudulent  conveyance,  bond, 
&c.,  forfeit  a  year's  value  of  the  lands  or 
tenements  conveyed,  the  whole  value  of 
the  chattels,  and  the  amount  of  any  cove- 
nous  bond,  half  to  the  crown,  and  half  to 
the  parties  grieved  ;  the  assignees  of  an 
insolvent  are  parties  grieved  within  this 
section.  Butcher  v.  Harrison,  4  B.  & 
Ad.  129.  [The  st.  13  El,  c.  5,  extends 
only. to  such  things  as  are  liable  to  be' 
taken  in  execution ;  bonds,  therefore, 
previously  to  st.  1  &  2  Vict.  c.  110,  s. 
12,  were  not  within  the  statute ;  Sims  v. 
Thomas,  12  A.  &  E.  530.  554.]  Copy- 
holds are  not,  generally  speaking-,  witliin 
st.  13  Eliz.  on  account  of  their  not  being, 
generally  speaking,  subject  to  debts. 
Slatthews  v.  Feaver,  1  Cox,  Ch.  Ca. 
278, 

The  statute  27  Eliz.  c.  4,  being  in  pari 
materia  with  the  13th  Eliz.  c.  5,  is  re- 
ferred to  in  the  text  in  illustration  of  the 
doctrine  there  laid  down  respecting  the 
construction  of  the  latter  statute.  The 
27  Eliz.  (rendered  perpetual  by  30  Eliz, 
cap.  18) "was  enacted  for  the  protection 
of  purchasers,  as  13  Eliz.  was  for  that 
of  creditors.  It  enacts  that  every  con- 
veyance, grant,  charge,  lease,  estate,  and 
limitation  of  use  of,  in,  or  out  ef  any 
lands,  tenements,  or  other  hereditaments 
whatsoever,  for  the  intent  and  purpose  to 
defraud  and  deceive  such  persons,  bodies 
politic,  &c.,  as  shall  purchase  the  said 
lands,  &c.,  or  any  rent,  profit,  or  com- 
modity, in  or  out  of  the  same,  shall  be 
deemed  and  taken,  only  against  that  per- 
son or  persons,  bodies  politic,  &,c.,  and 
his  or  tlieir  heirs,  successors,  executors, 
administrators,  and  assigns,  and  against 
every  one  lawfully  claiming  under  them 
who  shall  so  purchase  for  money,  or  any 
good  consideration,  the  said  lands,  &c., 
or  any  rent,  &c.,  to  be  wholly  zJoitZ,  frus- 
trate and  of  none  eflect. 

Under  this  act  it  is  held  that  not  merely 
is  a  conveyance  executed  with  express 
intention  to  defraud  subsequent  pur- 
chasers for  value  void  as  against  them, 
see  Burrell's  case,  6  Rep.  72 ;  Gooch's 
case,  5  Rep.  60  ;  and  Standen  v.  Bullock 
cited  ante  p.  5  ;  but  a  voluntary  convey- 
ance is  so  likewise,  even  though  the 
subsequent  purchaser  have  notice  of  it. 
Goodright  v.  Moses,  1  Bl,  1019  ;  Evelyn 
V.  Templar,  1  Bro.  148 ;  Doe  v.  Man- 


ning, 9  East,  59 ;  Cormick  v.  Trapaud, 
8  Dow,  00;  for  the  very  execution  of 
a  subsequent .  conveyance  sufficiently 
evinces  the  fraudulent  intent  of  the  for- 
mer one.  The  Jifth  section  of  the  same 
statute  enacts,  that  if  any  person  shall 
make  any  conveyance  of  lands,  with  a 
clause  of  revocation,  at  his  will  and  plea- 
sure, of  such  conveyance ;  and,  after 
such  conveyance,  shall  bargain,  sell 
grant,  demise,  convey,  or  charge  the 
same  lands  to  any  person  or  persons  for 
money  or  other  good  consideration,  the 
said  first  conveyance  not  being  revoked, 
that  the  said  first  conveyance,  as  against 
such  bargainees,  vendees,  lessees,  their 
heirs,  successors,  executors,  administra- 
tors, and  assigns,  shall  be  void  and  of 
none  eflect.  See  the.  observations  on 
this  section  in  the  principal  case,  A 
power  to  mortgage  to  any  extent  is  a 
power  of  revocation  within  the  meaning 
of  this  section.  Tarback  v.  Marbury, 
2  Vern.  511.  But  a  power  to  charge 
with  a  particular  sum  is,  if  no  fraud  be 
found,  not  so.  Jenkins  v.  Kemish,  1  Lev. 
152,  A  power  to  lease  for  any  number 
of  years  with  or  without  rent,  is  also  a 
power  of  revocation  within  this  section: 
for  both  that  and  the  mortgage  power 
enable  the  party  exercising  them  to  defeat 
the  estate  in  substance.  Lavender  v. 
Blackstone,  2  Lev,  146.  But  a  power 
to  be  exercised  with  the  consent  of  third 
persons  is  not  within  this  clause,  unless, 
as  in  the  case  put  in  the  text,  they  be 
under  the  control  of  the  settlor.  Buller 
v,  Waterhouse,  2  Show.  46. 

A  mortgagee  is  a  purchaser  within 
the  meaning  of  the  27  Eliz.  Chapman  v. 
Emery,  Cowp.  279;  and  so  is  a  lessee 
at  a  rack-rent,  Goodright  v,  Moses,  2  Bl. 
1019;  or  a  person  who  releases  a  con- 
tested right  in  consideration  of  the  con- 
veyance to  him.  Ilill  v.  Bishop  of  Exeter, 
2  Taunt.  69,  or  the.  purchaser  under  a 
settlement  made  in  consideration  of  an 
^intended  marriage,  Douglas  v,  r^.,.. 
Ward,  1  Cha.  Ca.  79 ;  but  not  L  ^*  J 
under  a  post-nuptial  settlement,  unless 
made  in  pursuance  of  articles  entered  into 
before  marriage,  Martin  v.  Scudamore,  1 
Cha.  Ca.  170,  for  one  voluntary  convey- 
ance cannot  defeat-anotber.  Clavering  V. 
Clavering,  2  Vern'.  473;  1  Abr.  Eq.'24, 
And  semble  that  the  Articles  ought  to 
be  binding  ones,  Doed.  Barnes  v.  Rowe, 
5  N.  C.  737.  A  will  is  looked  on  us  a- 
voluntary  conveyance.  Villers  v.  Beau- 
mont, 1  Vera,  100  ;  Boughton  v.  Bough- 


44 


smith's   leading  cases. 


ton,  1  Atk.  625.  See  3  Swanst.  411, 
414,  in  notis.  And  there  may  be  cases 
in  which,  on  account  of  the  inadequacy 
of  the  price,  a  question  ma3r  arise",  whe- 
ther a  subsequent  conveyance,  thougli 
some  value  pass,  be  not  in  effect  volun- 
tary, and  a  mere  trick  for  the  purpose  of 
invalidating  a  former  one.  Doe  v.  James,  ■ 
16  East,  212.  A  lessee  without  fine  or 
rent  is  not  a  purchaser  within  the  sta- 
tute. Upton  v.  Bassett,  Cro.  Eliz.  444 ; 
cited  also  in  Twyne's  case. 

In  27  Eliz.  there  is  a  proviso,  sect.  4, 
similar  to  that  in  13  Eliz.,  sect.  6,  in 
favour  of  bona  fide  purchasers.  Such 
are  considered,  persons  taking'  under 
instruments  made  for  a  valuable  consi- 
deration. Roe  V.  Mitton,  2  Wils.  356;  or. 
under  ante-nuptial  settlements;  Kirk  v. 
Clark,  Prec.  in  Clia.  275 ;  or  post-nuptial 
settlement  made  in  consideration  of 
ante-nuptial  articles  ;  or  of  an  additional 
portion,  Dundas  v.  Dutens,  2  Cox,  235  ; 
Jones  V.  Marsh,  Forest,  63 ;  Browne  v, 
Jones,  1  Atk.  183  ;  Spurgeon  v.  Collier, 
1  Eden,  55 ;  or  in  consideration  of  the 
wife's  joining  to  destroy  an  ante-nuptial 
settlement,  Scott  v.  Bell,  2  Lev.  70.  So 
also  persons  who  between  the  voluntary 
settlement  and  the  purchase,  have  ac- 
quired as  purchasers  under  the  voluntary 
settlement  any  legal  or  even  equitable 
right.  Langham  v.  Prodgers,  1  Sid. 
133 ;  Smartle  v.  Williams,  3  Lev.  337, 
Skinn.  423 ;  Kirk  v.  Clark,  Prec.  Cha. 
275 ;  Brown  v.  Carter,  5  Ves.  jur.  862  ; 
George  v.  Milbank,  10  Ves.  190.  There 
have  been  some  cases  in  which  the  ques- 
tion has  been,  how  far  the  consideration 
of  marriage  will  extend,  and  whether 
limitations  in  favour  of  very  remote 
objects  may  not  be  void  as  against  sub- 


sequent purchasers.  See  Jenkins  v. 
Kemish,  Hard.  395  ;  White  v.  Stringer, 
2  Lev.  i05;  Osgood  v.  Stroud,  2  P. 
Wms.  245;  Ball  v.  Bamford,  Prec. -in 
Cha.  113;  Reeves  v.  Reeves,  9  Mod.  132. 
.In  two  of  the  latest  cases  on  the  subject  a 
limitation  to  tiie  issue  of  the  settlor  by  a 
second  marriage,  vyas' certified  by  the 
King's  Bench  no^  to  be  voluntary.  Clay- 
ton ""v.  Earl  of  VVinton,  3  Madd."  302. 
And  a  limitation  to  the  brothers  of  the 
settlor  to  be  voluntary.  Johnson  v.  Le- 
gard,  ibid.  283.  A  settlement  made  by 
a  widow  about  to  take  husband  upon  the 
ciiiidren  of  her  former  marriage,  was 
uphold  by  Lord  Hardwicke  against  a 
subsequent  mortgagee.  Ne^vstead  v. 
Series,  I  Atk.  26.5.  The  title  of  one 
who  purchased  for  valuable  considera- 
tion, from  a  person  who  had  obtained  a 
conveyance  by  fraud,  of  which  he  how- 
ever had  no  notice,  falls  within  the 
above  proviso,  and  cannot  be  impeached. 
Doe  V.  Martyr,  1  N.  R.  332.  The  sta- 
tute of  27  Eliz.  was,  perhaps,  a  more 
beneficial  enactment  than  that  of  13  Eliz., 
for  it  has  been  laid  down,  tliat  at  common 
law  no  fraud  was  remedied  which  should 
defeat  an  after-purchase,  but  only  that 
which  wascommitted  to  defraud  a  former 
interest.  Cro.  Eliz;  445,  and  pp.  7  &  8 
supra ;  yet  there  is  a  dictum  of  Lord 
Mansfield's  to  the  contrary,  in  Cadogan 
V.  Kennett,  Cowp.  434.  Copyholds  are 
within  this  act.  Doc  v.  Bottrieli,  5  B. 
&  Ad.  131 ;  Currie  v.  Bind,  1  Myl.  & 
Cr.  17. 

[As  to  executions  and  judgments 
fraudulent  under  st.  13  El.  c.  5,  see 
Imray  v.  Magnay,  11  M.  &  W.  267,  and 
Hunt  V.  Hooper,  12  Id.  664.] 


The  subject  of  sales  and  mortgages  of  chattels  without  delivery  of  pos- 
session, has  given  rise,  in  America,  to  more  protracted  discussion  than  any- 
other  matter,  probably,  in  the  law.  For  precision  in  regard  to  so  nice  a 
subject,  it  will  be  necessary  to  consider  the  different  courts  of  the  Union 
separately:  but  they  may  be  grouped  conveniently  in  three  classes.  In  the 
first,  which  includes  the  courts  of  the  United  States,  of  Virginia,  Kentucky, 
Illinois,  Alabama,  and  Indiana,  the  principle  established  is,  that  unless- pos- 
session follow  the  deed, — that  is,  if  the  possession  be  retained  inconsistently 
with  the  legal  nature  and  purpose  of  the  transfer,  the  conveyance  is,  by  the 
statutes  of  Elizabeth,  fraudulent  in  law,  and  void,  against  creditors  and  sub- 


T  W  Y  N  E  '  S     C  A  S  E.  45 

sequent  bona  fide  purchasers  ;  and  by  these  courts  it  is  held,  that  in  case 
of  contingent  sales  or  mortgages,  the  retaining  of  possession  is  not  incon- 
sistent with  the  nature  of  the  conveyance.  The  law  of  New  Hampshire 
and  South  Carolina  may  be  considered  in  this  connexion,  as  resembling  this 
class  more  nearly  than  any  other.  The  second  class,  which  takes  in  the 
courts  of  New  York,  as  they  stood  before  the  Revised  Statutes,  of  Pennsyl- 
vania, Connecticut  and  Vermont,  diliers  from  the  first,  chiefly  in  holding 
that  delivery  of  possession  is  necessary  as  against  creditors,  in  case  of  mort- 
gages and  contingent  transfers,  as  well  as  in  cases  of  absolute  sales  ;  the'y 
hold  that  all  conveyances  are  fraudulent  in  law,  where  possession  does  not 
pass  with,  the  title,  unless  it  have  been  retained  for  reasons  satisfactory  to 
the  court.  In  the  third  class,  the  distinction  taken  in  the  first,  between 
absolute  and  contingent  sales,  is  adopted,  but  it  is  held,  that  retaining  pos- 
session inconsistently  with  the  conveyance  is  only  evidence  of  fraud  for  the 
jur)\  This  class  comprehends  the  courts  of  Massachusetts,  Maine,  Ohio 
and  Tennessee. 

It  is  believed  that  the  real  difierence  in  principle,  between  the  last  and . 
two  former  classes,  is  upon  the  question  what,  in  law,  constitutes  the  fraud 
which,  under  these  statutes  of  Elizabeth,  avoids  conveyances.  The  defini- 
tion of  fraud  is  always  matter  of  law  ;  and  the  point  really  in  issue,  in  the 
controversies  that  have  taken  place  on  this  subject,  appears  to  be,  whether 
this  statutory  fraud  consists  in  the  debtor's  merely  reserving  to  himself  a 
trust  out  of  the  property  conveyed,  or  whether  like  fraud  at  common  law  it 
lies  solely  in  an  actual  design  to  cheat.  It  is  commonly  supposed  that  the 
distinction  is  merely  as  to  the  nature  and  weight  of  the  evidence  which 
retention  and  possession  affords  ;  whether  it  raises  a  legal  presumption  of 
fraud  of  which  the  court  are  to  take  cognizance,  or  only  a  natural  presump- 
tion with  which  the  jury  are  to  deal.  But  this  distinction  appears  to  be 
merely  a  derivative  one  flowing  necessarily  or  reasonably  out  of  the  diver- 
sity above-mentioned  as  to  the  legal  nature  and  definition  of  fraud,  which  is 
the  essential  difference  at  the  bottom  of  the  whole  affair. 

(1).  The  federal  courts  and  those  which  follow  them,  seem  to  hold, 
what  there  are  many  and  strong  reasons  for  believing  to  be  the  true  inter- 
pretation of  the  statutes  of  Elizabeth,  that  fraud,  under  those  statutes,  con- 
sists in  the  debtor's  reserving  to  himself  some  interest  or  benefit  out  of  the 
property  conveyed  :  and  under  this,  they  have  adopted  the  general  princi- 
ple of  evidence  settled  in  Twyne's  case,  that  retaining  possession  of  chattels 
after  a  conveyance  of  them,  raises  in  law  a  presumption  of  a  secret  trust 
that  is,  is  prima  facie  evidehce  of  a  secret  trust  or  of  fraud,  but  may  be 
explained  or  rebutted, — presumptio  juris,  though  not  juris  et  de  jure.  The 
presumption  is  in  its  nature  a  legal  one,  for  the  rights  and  interests  result- 
ing from  transactions  are  matter  of  law.  Now  if  the  law  makes  the  pre- 
sumption, the  law  must  determine  when  the  presumption  is  rebutted  ;  for 
to  let  the  jury  decide  generally  upon  the  eufficiency  of  any  circumstances 
to  rebut  the  presumption,  would  be  to  make  the  jury  judges  of  the  weioht 
of  the  presumption,  and  would  therefore  change  the  nature  of  this  presump- 
tion from  being  one  of  law  to  a  mere  natural  one  of  fact ;  or  from  being  prima 
facie  evidence  to  being  merely  competent  and  sufficient  evidence.  Accord- 
ingly these  courts  have  proceeded  to  determine,  from  considerations  of  good 


46  smith's     LEADING     CASES. 

sense,  and  from  the  nature  and  reason  of  this  rule  of  evidence,  what  is  the 
legal  limit  of  the  presumption  ;  in  other  words,  how  far  it  may  be  rebutted. 
And  at  once  they  say,  that  if  the  conveyance  itself  be  in  its  nature  valid 
and  such  as  the  law  gives  effect" to,  no  possession  which  naturally  or  reason- 
ably results  from  the  design,  purpose  and  practical  operation  of  that  con- 
veyance, can  be  in  its  nature  fraudulent,  or  can  raise  a  presumption  of  any 
secret  trust  beyond  the  import  of  the  conveyance  ;  and  therefore,  when  the 
law  has  determined  that  mortgages  and  conveyances  to  the  use  of  creditors, 
are  valid  transactions,  it  would  be  contradictory  to  consider  that  any  reten- 
tion of  possession  which  is  justified  and  allowed  by  the  nature  and  purpose 
of  the  transfer,  csLn,  by  its  own  mere  operation,  render  the  conveyance 
invalid ;  and  upon  absolute  sales,  such  retention  of  possession  as,  being 
reasonable  or  unavoidable,  is  practically  consistent  with  an  absolute  transfer 
not  only  cannot  raise  any  suspicion  that  the  transfer  is  not  absolute,  but 
must  be  considered  as  having  been  ratified,  and  approved  by  the  law  when 
it  sanctions  the  principle  of  absolute  sales  by  debtors.  But  it  is  very  plain 
that  beyond  this,  rebuttal  cannot  extend,  without  upsetting  the  principle  of 
a  legal  presumption  or  prima  facie  evidence  altogether,  and.  conflicting  with 
the  previous  definition  of  fraud.  '  For,  it  was  an  apparent  irreconcilability 
of  the  possession  with  the  conveyance  that  raised  in  law  the  presumption 
of  a  secret  trust  behind  the  conveyance,  and  unless  all  real  irreconcilability 
is  removed,  the  presumption  of  law  certainly  is  not  removed.  The  posses- 
sion of  goods" constitutes  a  use  in  him  who  possesses,  and  if  the  possession 
be  in  derogation  of  the  conveyance,  it  must  be  by  a  secret  consent  or  agree- 
ment of  the  parties.  (2).  The  courts  referred  to  in  the  second  class, 
above-mentioned,  which  comprise  the  noted  cases  of  Sturtevant  and  Keep 
V.  Ballard,  and  Clow  and  another  v.  Woods,  may  be  regarded  as  proceed- 
ing upon  the  same  general  notion  of  fraud,  with  the  first  class,  and  adopt- 
ing the  same  rule  of  evidence  to  the  presumption  of  fraud  from  retention  of 
possession.  But  they  have  been  led  by  reasons  of  public  pohcy,  and  a 
desire  to  prevent  debtors  from  acquiring  a  false  credit  in  the  eyes  of  the 
world,  to  narrow  the  exception  to  the  presumption,  so  that  the  exception 
shall  not  embrace  all  those  cases  in  whicJi  a  retention  of  possession  is 
allowed  by,  or  is  merely  not  inconsistent  with,  the  nature  of  the  conveyance 
but  only  those  in  which  it  is  strictly  required  by  it ;  and  thus  the  legal  pre- 
sumption of  fraud  will  apply  to  all  cases  except  where  the  law  approves  of 
the  conveyance  and  its  purpose,  and  the  non-delivery  of  possession  is  abso- 
lutely necessary  to  give  effect  to  the  conveyance  and  accomplish  its  pur- 
pose. Contingent  sales,  or  mortgages,  are  therefore  within  the  application 
of  the  principle.  And  as  the  mortgagee  has  an  immediate  right  to  the  pos- 
session, any  retention  is,  obviously,  as  much  in  derogation  of  the  rights 
transferred  by  the  conveyance,  in  case  of  mortgages  as  of  absolute  sales, 
and  therefore  should  raise  the  same  presumption  of  a  secret  trust  behind 
the  conveyance.  The  rule  adopted  in  these  tribunals,  that  the  court  is  in  all 
cases  to  pronounce  upon  the  sufliciency  of  the  motives  and  reasons  for  non- 
delivery, results  directly  from  the  principle  of  prima  facie  evidence,  or  of 
the  presumption  being  one  of  law.  (3)  The  third  class  differs  widely  from 
both  of  these  ;  but  the  diversity,  as  above  remarked,  appears  to  grow  out 
of  a  difference  as  to  the  legal  constitution  and  definition  of  fraud.  These 
courts  hold  that,  as  to  sales  of  chattels,  fraud  under  these  statutes  as  well 


TWYNe's    CASE.  47 

as  at  common  law,  consists  only  in  an  actual  intention  to  hinder  and  delay 
creditors,  which  is  necessarily  a  mere  consideration  of  fact ;  and  that  the 
reservation  of  a  trust,  expressly  or  impliedly,  upon  a  transfer  of  chattels, 
is  not,  in  itself,  legally  a  fraud.  It  is  held,  that  the  retaining  of  the  pos- 
session upon  a  conveyance,  inconsistently  with  the  legal  completeness  of 
the  transaction  and  the  ordinary  practice, — which  applies  therefore  only 
to  absolute  sales,  and  not  to  mortgages, — raises  a  presumption  that  the  con- 
veyance is  colourable  ;  and  with  this  presumption,  the  whole  evidence,  as 
this  definition  of  fraud  necessarily  requires,  is  referred  to  the  jury  upon  the 
question  whether  there  was  or  not  in. point  of  fact,  an  intention  to  hinder 
and  delay  creditors.  The  cases,  indeed,  in  these  states,  generally  speak  of 
possession  being  prima  facie  evidence  of  fraud  ;  but  their  practice  necessa- 
rily implies  that  it  is  merely  competent  and  sufficient  evidence,  raising  a  ■ 
natural  presumption  ;  for  the  court  does  not  exercise  the  right  of  judging 
of  the  sufficiency  of  the  evidence  to  rebut  the  presumption  of  fraud,  but 
leaves  every  case  to  the  jury  ;  and  to  let  the  jury  negative  the  presumption 
if  they  will,  is  to  make  them  the  judges  of  its  weight  and  extent:  it  is 
obvious,  too,  that  in  point  of  reason  and  good  sense,  retaining  of  possession 
does  not  raise  the  same  strong  and  constant  presumption  of  and  actual  design 
to  defraud,  as  it  does  of  a  trust ;  and,  it  may  be  added,  that  the  making  the 
test  of  fraud  to  consist  in  the  presence  or  absence  of  a  particular  external" 
fact  varying  in  each  separate  case,  necessarily  does  away  with  every  thing 
like  a  general  and  permanent  presumption.  It  can  therefore  hardly  be  said 
that  the  rule  in  Twyne's  ease  exists  at  all  in  Massachusetts',  Maine,  &c. ; 
and  it  may  be  considered  that  this  principle  and  rule  of  evidence  necessa- 
rily perish,  when  the  definition  of  fraud  which  gave  rise  to  them,  is  aban- 
doned. 

(1).  Following  the  arrangement  suggested  above,  we  may  consider  the 
Federal  courts,  the  courts  of  Virginia,  Kentucky,  .Illinois,  Alabama,  and 
Indiana,  first,  as  agreeing  substantially,  though  sometimes  differing  from 
one  aiiother  in  the  form  in  which  the  principle  is  laid  down,  and  differing 
in  some  points  of  its  application. 

In  the  Federal  Courts,  in  Hamilton  v.  Russell,  the  principle  of  Edwards 
V.  Harben,  was  approved  and  adopted  by  Chief  Justice  Marshall.  "  An 
unconditional  sale,  where  possession  does  not 'accompany  and  follow  the 
deed,'  is,  with  respect  to  creditors,  on  the  sound  construction  of  the  statute 
of  Elizabeth,  a  fraud,  and  should  be  so  determined  by  the  court.  [Meeker 
et  al.  v.  Wilson,  1  Gallison,  419.  423,  S.  P.  diet. ;  Phettiplace  v.  Sayles,  4 
Mason,  312.  322,  S.  P.  diet.,  where  the  rule  is  rested  on  public  policy.] 
The  distinction  is,  between  a  deed  purporting  on  the  face  of  it  to  be  absolute, 
so  that  the  separation  of  the  possession  from  the  title,  is  incompatible  with 
the  deed  itself;  and  a  deed  made  upon  condition  that  does  not  entitle  the 
vendee  to  the  immediate  possession  ;"  Hamilton  v.  Russell,  1  Cranch,  309. 
316.  In  U.  S.  V.  Hooe  etal.  id.  73.  89,  the  dicta  of  the  chief  justice  seems 
to  recognise  the  rule  as  being,  that  retaining  possession  after  an  absolute 
bill  of  sale,  is  a  fraud  in  lav/  ;  but  if  the  conveyance,  from  its  terms,  is  to 
leave  the  possession  in  the  grantor,  as  in  case  of  a  mortgage,  retaining  pos- 
session is  no  evidence  of  fraud.  In  Conard  v.  The  Atlantic  Insurance  Co., 
1  Peters,  388.  499,  it  is  said,  that  where  the  sale  is  not  absolute,  but  con- 
ditional, the  want  of  possession,  if  consistent  with  the  stipulations  of  the 


48  smith'sleadingcases. 

parties,  and,  a  fortiori,  if  flowing  from  them,  is  not,  per  se,  a  badge  of  fraud. 
Arid  in  D'Wolf  v.  Harris,  4  JVIason,  515,  at  Nisi  Prius,  it  was  ruled,  in  case 
of  a  mortgage,  or  defeasible  conveyance — that  if,  by  the  terms  of  the  contract, 
or  by  necessary  implication,  the  parties  agree,  that  possession  shall  not  pass,' 
there  is  nothmg  fraudulent  in  that.  -It  will  be  observed,  that  these  cases 
admit  retention,  according  to  the  terms  of  the  deed,  only  where  the  sale  is 
not  absolute  ;  and  the  rule  to  be  extracted  from  them  appears  to  be,  that  if 
the  title  be  transferred  absolutely  to  the  grantee,  for  his  own  use,  possession 
must,  in  every  case,  be  delivered,  as  soon  as  practicable,  and  as  far  as  prac- 
ticable, according  to  the  circumstances  of  the  property  and  the  parties,  or 
it  is  void  against  creditors ;  but,  if  the  title  pass  only  conditionally  or 
defeasibly,  possession  may  then  be  in  either  one  or  the  other  ;  provided,  it 
be  not  held  contrary  to  the  intention  of  the  parties,  as  drawn  from  the  deed  ; 
the  right  to  control  the  possession  by  agreement  in  the  deed,  not  existing 
in  case  of  an  absolute  transfer  of  the  interest.  This  distinction  is  very  fully 
illustrated  in  the  Kentucky  case  of  Hundley  v.  Webb,  post ;  and  the  prin- 
ciple that  inconsistency  with  the  agreement  in  the  deed,  will,  even  in  case 
of  a  -mortgage,  .render  the  retaining  of  possession  a  fraud,  is  supported  by 
the  decision  in  Jordan  v.  Turner,  in  Indiana,  post.  It  is  obvious-,  that  the 
principle  of  Hamilton  v,  Russell,  will  not  avoid  a  conveyance  for  want,  of 
immediate  possession,  that  the  bill  of  sale  is  the  tranfer  of  property  not  within 
the  power  of  the  parties  ;  for  the  non-accompaniment  of  possession  is  then 
not  inconsistent  with  the  conveyance:  and,  accordingly,  it  is  decided,  that 
an  assignment  of  a  ship  or  goods  at  sea,  will  transfer  the  property,  so  as  to 
prevail  against  a  subsequent  attachment;  provided,  the  vendee  take  posses- 
sion within  a  reasonable  time  after  their  arrival;  Wheeler  v.  Sumner,  4 
Mason,  183  ;  Conard  v.  The  Atlantic  Insurance  Co.  But  if  he  do  not  take 
possession  within  a  reasonable  time,  the  same  presumption  of  legal  fraud 
arises,  as  if  the  possession  has  originally  been  practicable,  and  withheld ; 
Meeker  et  al.  v.  Wilson.  The  case  of  an  assignment  to  a  trustee,  for  the 
benefit  of  creditors,  was  said  by  Chief  Justice  Marshall,  not  necessarily  to 
fall  within  the  principle  of  Russell  v.  Hamilton  ;  being  a  transfer,  not  to 
the  immediate  use  of  the  transferree,  but  for  the  testator  to  dispose  of  for  a 
particular  purpose  :  "  The  continuance  of  the  possession  with  the  donor, 
until  the  trust  can  be  executed,  may  not  be  so  incompatible  with  the  deed, 
as  to  render  it  absolutely  void  under  all  circumstances.  The  court  does  not 
mean  to  express  any  opinion  on  this  point,  further  than  to  say,  that  it  is 
not  supposed  to  be  decided  in  Hamilton  v.  Russell."  Brooks  v.  Marbury, 
1 1  Wheaton,  79.  82.  Upon  the  whole,  the  principle  established  in  the 
Courts  of  the  United  States  seems  to  be  : — that  the  transaction  is  fraudulent 
in  law,  and  void  against  creditors,  if  the  possession  be  retained  inconsistently 
with  the  purpose,  trust,  and  appropriation  of  the  property,  as  fixed  by 
the  legal  operation  of  the  deed ;  that  in  absolute  sales,  the  possession  must 
be  delivered  in  a  reasonable  time  ;  for  the  nature  and  purpose  of  the 
transaction  require  it ;  but  in  mortgages  and  other  conveyances,  not  absolute, 
possession  may  be  retained  without  fraud  ;  for  that  is  not  inconsistent  with, 
the  object,  design  and  nature  of  the  transaction. 

In  Virginia,  the  construction  of  the  rule  has  always  been,  and  still  is,  in 
exact  accordance  with  Edwards  v.  Harben,  and  Hamilton  v.  Russell ;  that, 
though  such  retention  of  possession  as  stands  with  the  nature  of  the  con- 


twyne's^case.  49 

veyance  is  not  fraudulent,  yet  retention,  or  immediate  re-delivery  of  posses- 
sion, after  an  absolute  bill  of  sale,  is,  per  se,  fraudulent  in  law,  however 
free,  in  other  respects,  the  case  may  be  from  any  evidence  of  dishonesty  or 
unfairness,  and  renders  the  sale  void  as  against  creditors,  and  subsequent 
purchasers  :  Fitzhugh  v.  Anderson  and  others,  2  Hening  &  Munford,  289. 
303  ;  Alexander  v.  Deneale,  2  Munford,  341  ;  Robertson  v.  Ewell,  3  id.  1. 
7;  Thomas  v.  Soper,  5  id.  28  ;  Williamson  v.  Farley,  Gilmer,  15.  And 
though  retention  of  possession  after  a  mortgage  is  not  fraudulent ;  Rose's 
Adm'x  V.  Burgess,  10  Leigh,  186  ;  yet  a  retention  after  a  release  of  the 
equity  of  redemption,  or  sale  to  the  mortgagee  is;  Clayborn  v.  Hill,  1 
Washington,  177  ;  Glasscock,  &c.  v.  Batton,  6  Randolph,  78.  It  seems, 
however,  that  if  possession  be  bona  fide  taken,  or  asserted,  before  the 
creditor's  lien  attaches,  it  is  good  ;  Sydnor  v.  Gee,  &c.,  4  Leigh,  535  ; 
Lewis  V.  Adams  and  another,  6  id.  320.  Since  the  early  cases  before- 
cited,  the  subject  has  undergone  extensive  and  thorough  discussion  ;  but 
the  principle  originally  settled  in  accordance  with  Hamilton  v.  Russell, 
has  not  been  at  all  shaken  or  altered.  On  the  contrary,  the  principle  that 
possession  consistent  with  the  deed  is  not  fraudulent,  and  possession  incon- 
sistent with  the  deed  is  fraudulent,  in  law,  is  explained  in  the  ablest  manner, 
and  firmly  established.  The  case  of  Land,  &c.  v.  Jeffries,  &c.,  5  Randolph, 
211,  turned  upon  the  validity  and  construction  of  a  deed,  intended  to  be  for 
separate  use  ;  upon  a  fraudulent  deed  being  void  only  agaitist  the  creditors 
of  the  grantor^  and  upon  the  husband's,  possession  of  the  wife's  separate 
properly,  being  riot  inconsistent  with  the  deed;  but  the  judges  expressed 
their  views  upon  the  general  principle  of  retention  of  possession,  and  they 
are  all  in  perfect  accordance  with  those  embodied  in  the  decisions  of  the 
federal  courts,  viz. :  that  the  inconsistency  of  the  possession  with  the  deed, 
is  the  matter  which  constitutes  fraud.  Carr,  J.,  says,  that  "  The  doctrine 
of  fraud,  pet  se,  is  not  statute  law;  and,  therefore,  not  a  strict  positive 
thing.  It  is  a  rule  of  the  courts,  founded  in  reason  and  convenience.  It 
is  not  every  possible  case,  in  which  possession  remaining  with  the  grantor, 
constitutes  fraud.  The  possession  may  be  consistent  with  the  deed."  An 
absolute  conveyance,  he  said,  should  be  accompanied  by  possession ;  and, 
if  possession  remain  with  the  grantor,  longer  than  in  the  natural  course  of 
fair  transactions  it  ought,  it  raises  a  presumption  of  a  secret  trust,  and, 
unexplained,  constitutes  a  fraud ;  but  it  may  be  explained, — as  by  showing 
in  case  of  a  slave,  that  the  slave  was  so  ill,  that  a  removal  would  have 
endangered  his  life;  or  in  case  of  the  purchase  of  a  horse  in  the  country, 
where  he  is  left  till  he  can  be  sent  for  the  next  day  ;  this,  obviously,  is 
saying,  merely  that  on  an  absolute  sale,  delivery  of  possession  need  not  be 
instantaneous,  it  is  good  if  made  as  soon  as  possible  or  practicable.  Green, 
J.,  said:  "A  possession  and  use,  inconsistent  with  the  terms  and  professed 
objects  of  the  deed,  makes  the  deed,  per  se,  fraudulent  and  void  ;  since  it 
proves  conclusively,  notwithstanding  any  colourable  conveyance,  that  the 
beneficial  right  to  the  property,  is  in  the  person  who  has  such  use  and 
possession  ;  and,  therefore,  such  use  and  possession  is  conclusive  evidence 
of  an  original  fraudulent  intent  in  the  making  of  the  deed,  and  avoids  it,  ab 
initio  :"  that  parol  proof  of  an  agreement,  in  relation  to  the  possession  of 
property  absolutely  conveyed,  inconsistent  with  the  legal  effect  of  the  deed, 
Vol.  I.— 4 


50  SMITIl'sLEADINOCASES. 

was,  therefore,  inadmissible ;  but  though  parol  proof  of  a  collateral  agree- 
ment for  a  posst'ssion  inconsistent  with  the  deed,  is  inadmissible,  parol  proof 
may  be  given  to  show,  that  really  tliere  is  no  inconsistency  between  the 
possession  and  the  deed  :  thus  "  if  the  deed-be  conditional  on  its  face,  proofs 
may  be  given  as  to  the  performance  or  non-performance  of  the  condition  ; 
or,  if  upon  the  face  of  the  deed,  the  property  is  to  be  disposed  of  by  the 
grantor,  for  the  benefit  of  the  grantee  ;  or,  if  the  grantor  retains  the  posses- 
sion, not  for  his  own  use,  and  does  not  use  it,  but  only  for  safe-keeping, 
until  the  grantee  can  take  possession,  as  if  the  grantee  be  at  a  distance  ;  or, 
the  deed  is  to  trustees  for  the  purpose  of  selling,  and  paying  debts, -and  the 
property  remains  for  safe-keeping,  in  possession  of  the  debtor,  (as  is  usual 
in  such  cases,)  until  a  sale  can  be  conveniently  made  ;  or,  if  the  property 
be  in  such  a  situation  as  that  it  cannot  be  delivered,  (as  at  sea,)  so  that  it  be 
delivered  as  soon  as  practicable  ;  or,  if  the  grantee  purchase  at  a  sherift"'s 
sale,  and  leave  the  property  in  the  possession  of  the  debtor,  and  for  his  use, 
this  possession  is  not  inconsistent  with  the  idea  of  a  bona  fide,  absolute,  and 
efleclual  conveyance  from  the  sherifl'to  the  purchaser;  or,  if  the  possession 
be  a  social  possession,  so  that  a  possession  of  the.  grantee  may  be  implied  ; 
such  cases  do  not  in  fact,  come  within  the  rule  under  discussion  ;  since 
no  proofs  are  given   to  contradict  or  vary  the  terms  or  effect  of  the  deed, 
but  only  to  show  that  the  possession  is  not,  in  fact,  inconsistent  with  the 
terms  of  the  deed  itself."     Coalter,  J.,  says,  "  An  absolute  bill  of  sale,  by 
one  in  debt,  of  his  goods,  of  which  he  afterwards  retains  the  possession,  is 
deemed  fraudulent  as  to  his  creditors,  because  a  secret  trust  in  his  favour  is 
presumed,  even  if  the  grantee  is  also  a  bona  fide  creditor  to  the  full  value  of 
the  goods."     Brooke,  President,  says,  that  the  vendor's  remaining  in  posses- 
sion, is  conclusive  evidence  of  fraud  unless  explained  ;    but  such  expla- 
nation may  be  given,  "when  it  is  confined  to  unavoidable  circumstances, 
in  exclusion  of  any  agreement  or  assent  of  the  parties,  inconsistent  with 
the  deed."     Cabell,  J.,  in  his  very  able  and  interesting  opinion,  (Appen- 
dix, i.  p.   599,)  opens  the  M-hole  subject  with  the  greatest  clearness  and 
comprehension,  and  reconciles  all  the  cases  :  he  says,  that,  "  Inconsistency  of 
possession  with  the  deed,  is  the  principle,  the  foundation  of  the  rule,  and  the 
test  of  its  application  :"  that.  Inconsistency  of  possession,  renders  the  deed 
fraudulent  in  law,  and  absolutely  void,  without  regard  to  intention  ;  mere 
possession  by  the  vendor,  is  prima  facie  evidence  of  fraud  ;  because  posses- 
sion is  always  prima  facie  evidence  of  property  in,  or  of  a  trust  for,  the  per- 
son possessing  ;  it  may  be  explained,  by  showing  it  to  be  not  inconsistent 
with  the  purpose  of  the  deed,  as  by  being  only  temporary,  for  the  reasonable 
convenience  of  the  grantee  ;  unless  it  thus  be  shown  to  be  not  inconsistent 
with  the  deed,  it  is  conclusive  evidence  of  fraud  ;  that.  As  to  the  doctrine  of 
inconsistency  of  possession-,  there  is  no  difference  between  a  conveyance  to 
trustees,  and  a  direct  conveyance  to  the  party  beneficially  interested  ;  the 
rule  of  fraud,  per  se,  as  the  English  cases  show,  is  never  applied  to  cases  of 
possession  by  the  former  owner,  after  a  sale  of  property  by  a  sheritf,  under 
an  execution  to  a  creditor,  or  one  not  a  creditor  ;  nor  to  possession  by  the 
former  owner  after  a  sale  made  by  trustees,  under  an  assignment  for  the 
benefit  of  creditors,  or  a  sale  by  a  landlord  on  a  distress  for  rent ;  indeed  it 
applies  only  to  conveyances  by  the  party  himself,  for  possession  by  the  former 
owner,  cannot  be  inconsistent  with  a  conveyance  from  some  third  person  in 


TW  Y  NE's    C  AS  E.  51 

whom  the  property  has  been  legally  vested,  and  who  has  full  right  to  sell 
and  convey  it  to  any  fair  purchaser  ;  that,  in  short,  the  rule  applies  only  to 
cases  of  inconsistent  possession,  and  to  that  it  applies,  even  if  there  have 
beea  no  imagination  of  fraud, — Claytor  v.  Anthony,  6  Randolph,  285,  turned 
on  other  points;  but  some  of  the  judges  expressed  their  opinions  on  this  : 
Carr,  J.  referred  to  his  former  opinion  in  Land  v.  Jeffries,  "  With  the  single 
remark  in  addition,  that  I  agree  fully  to  the  rule  of  Edwards  v.  Harben, 
'That  the  absolute  transfer  of  personal  chattels,  without  a  delivery  of  pos- 
session, is,  in  law,  fraiid,  per  se  ;'  "  but  it  may  be  explained  ;  "and  where 
this  explanation  is  satisfactory,  to  prove  the  perfect  fairness  of  the  transaction, 
and  that  the  inconsistency  of  title  and  possession,  formed  no  part  of  the  orig- 
inal contract,  the  case  is  taken  out  of  the  rule  :"  and  he  held,  that  the  doc- 
trine applied  only  to  cases  of  conveyance  from  the  parly  himself;  and  that, 
after  a  fair,  open,  public  sale,  by  a  third  person,  whether  a  sheriff",  bailiff",  or 
trustee,  the  purchaser  rrtay  let  the  property  remain  with  the  former  owner  : — 
Green,  J.,  examined  the  principle  at  large  ;  he  considered  the  doctrine  of 
possession,  per  se,  being  a  fraud,  to  be  "  deeply  founded  in  the  early  princi- 
ples of  the  common  law;"  ih^  it  went  "on  the  ground,  that  a  possession 
and  use  of  the  property  professedly  transferred  to  another,  inconsistent  with 
the  professed  object  of  the  transaction,  is  conclusive  proof  of  a  secret  trust  for 
the  original  owner,  and,  therefore,  fraudulent ;"  this  principle  he  considered 
long  and  .well  settled  and  that  the  cases  supposed  to  be  exceptions,  are  not 
so,  for  ill  all  those  cases,  "  the  possession  Avas  not  inconsistent  with  the  pro- 
fessed "purposes  of  the  transaction  ;  as,  if  the  sale  be  conditional,  or  the  situ- 
ation of  the  parties  or  property,  be  such,  as  that  it  cannot  be  conveniently 
delivered  to  the  purchaser,  so  it  be  delivered  as  soon  as  it  conveniently  can ; 
or,  it  is  avowedly  pledged,  as  a  security  for  the  payment  of  debts,  by  being 
convey'^ed  to  trustees  for  that  purpose  ;  in  all  of  these,  and  such  like  cases, 
the  possession  is  not  inconsistent,  and  the  character  of  fraud  is  not  necessarilj^ 
stamped  upon  it ; — this  rule,"  he  adds,  "  is  so  fortified  by  the  most  venerable 
authority,  and  so  well  founded  in  justice,  and  sound  policy,  that  I  should  be 
ver}'-  reluctant  to  depart  from  it  lightly,  or  to  fritter  it  away  by  refined  dis- 
tinctions :" — CoALTER,  J.,  thought,  that  a  public  sale  hy  a  trustee,  was  like 
a  sale  on  execution  or  for  rent,  and  that  the  purchaser  might  let  the  former 
owner  resume  possession.  In  Glasscock,  &c.  v.  Batton,  6  Randolph,  78,  it 
is  decided,  that  retention  of  possession,  after  an  absolute  sale,  is  a  fraud  in 
law,  and  voids  the  sale  ;  and  see  dicta  to  the  same  effect,  in  Burchard  et  ux. 
V.  Wright,  &c.,  11  Leigh,  463.  470.  Sydnorv.  Gee,  4  Id.  535,  and  Lewis 
V.  Adams  and  another,  6  id.  320,  turned  upon  the  possession  being  taken, 
actually  or  constructively,  before  the  execution  came  ;  but  as  to  the  question 
whether  after  a  fair  sak,  an  immediate  re-hiring, -bona  fide,  renders  the  sale 
fraudulent  in  law,  it  appears  from  these  cases,  that,  of  the  five  judges  com- 
posing the  court  at  the  time  of  the  latter  case,  three  judges  were  of  opinion 
thai  it  does,  and  two  that  it  does  not ;  and  Cabell,  J.,  in  the  latter  case  said, 
that  to  hold  such  a  transaction  to  be  not  a  fraud  in  law,  is  directly  con- 
trary to  Williamson  v.  Farley,  1  Gilmer,  15,  a  case  which  he  well 
remembered  was  most  gravely  considered  by  the  court :  and  he  said,  that 
where  possession  remained,  he  had  never  known  any  explanation  re- 
ceived as  sufficient,  if  "  the  possession  remained  for  the  use  of  the  vendor, 
however  fair  the  contract  by  which  he  was  allowed  to  retain  it,  and  even 


52  smith's    LEADING    CASES. 

although  it  may  have  been  for  a  valuable  consideration."  In  Charlton  etal. 
V.  Gardner,  11  Leigh,  281,  where  there  vi^as  a  deed  conveying  slaves,  and 
expressly  reserving  the  possession  for  the  grantor's  life,  which  appears  to 
have  been  construed  as  a  convieyance  to  the  grantor's  use  for  life,' and  after- 
wards to  grantee,  the  court,  per  Tucker,  P.,  said,  that  retention  of  possessioij 
in  cases  like  Edwards  v.  Harben,  is  a  fraud  in  law,  but  that  in  this  case  the 
possession  was  consistent  with  the  deed,  and  it  was  like  Cadogan  v.  Kenhet. 
But  Tavenner  v.  Robinson,  2  Robinson's  Virginia,  280,  again  decides  that 
an  absolute  sale,  with  an  agreement  in  the  deed  that  the  property  shall 
remain  for  the  present  in  possession  of  the  vendor,  he  agreeing  to  give  it  up 
on  request,  and  possession  actually  remaining  till  execution  is  levied,  is 
fraudulent  and  void  in  law  against  such  execution  ;  and  that  the  exception 
in  favour  of  a  fair,  open  and  public  sale  by  a  trustee,  could  not  extend  to  the 
case  of  a  public  sale  under  a  trust  deed,  advertised  by  the  trustee,  but  in  his 
absence  actually  authorized  and  directed  by  the  debtor,  that  being  virtually 
a  sale  by  the  debtor.  In  Kroeson  v.  Seevers,  &c.,  5  Leigh,  434,  it  was 
held,  that  a  sale  is  good,  of  a  slave,  at  the  time  in  possession  of  another  by 
contract,  of  hire,  the  slave  being  demanded  h^  the  vendee,  at  the  end  of  the 
hi'ring,  and  not  taken,  but  the  hirer  consenting  to  deliver  him  to  the  vendee 
when  required.  The  Virginia  cases  have-  been  referred  to  at  some  length, 
because  the  rule  developed  in  them,  and  established  by  the  consent  of  all 
the  judges,  appears  to  be  a  perfectly  accurate  expression  of  principle 
embodied  in  Edwards  v.  Harben',  and  the  later  English  cases.  The  reason 
of  the  rule,  agrees  more  nearly  with  that  in  Twyne's  case,  than  the  reasons 
given  in  most  other  slates. 

In  Kentucky,  the  subject  was  examined  very  ably  by  Robertson,  C.  J., 
in  Hundley  v.  Webb,  3  J.  J.  Marshall,  643,  and  the  following  rule  settled  as 
the  true  meaning  of  the  rule  in  Edwards  v.  Harben,  and  Hamilton  v.  Rus- 
scl :  Unless  possession  be  in  conformity  with  the  title  and  interest  as  vested 
by  the  deed,  it  is  a  fraud  by  judgment  of  law  ;  it  is  not  a  question  of  morals 
or  intention,  but  a  conclusion  of  law  as  to  the  validity  of  the  sale  as  against 
creditors  :  Therefore  an  absolute  sale  is  invalid  unless  possession  be  given, 
whatever  agreement  to  the  contrary  there  may  be  in  or  out  of  the  deed,  and 
whatever  reason  aliunde,  may  be  shown  for  retaining  possession:  but  in- 
onortgageSfihe  title  is  only  contingently  transferred  ;  it  is,  in  fact,  severed 
into  two  parts  ;  the  bare  legal  title,  passing  defeasibl}?-,  and  the  more  sub- 
stantial equitable  title,  not  passing  at  all ;  and  the  retaining  of  the  possession 
is  therefore  not  inconsistent  with  the  title  created  by  the  deed,  and  is  not  a 
fraud  in  law.  These  distinctions  accord  with  all  that  has  been  decided  in 
Kentucky  before  and  since  :  and  following  them,  the  other  cases  may  be 
arranged  nnder  the  heads  of  absolute  transfers  and  transfers  not  absolute. 
That  an  absolute  sale,  where  possession  is  retained  by  the  vendor,  is  fraudu- 
lent in  law  and  entirelj'  void,  is  decided  in  Dale  v.  Arnold,  2  Bibb,  605  ; 
Allen,  &c.,  v.  Johnson,  4  J.  J.  Marshall,  235  ;  Lyne,  &c.,  v.  Bank  of  Ken- 
tucky, 5  Id.  545.  574  :  and  is  recognized  and  applied  in  Laughlin  v.  Fergu- 
son and  others,  6  Dana,  111.  119;  and  Daniel,  tS:c.  v.  Morrison's  Executors, 
&c.,  id,  J 82,  (a.  d.  1838  ;)  and  in  the  latter  case,  though  the  consistency  of 
the  rule  with  either  "  sound  policy  or  the  harmony  of  legal  science"  was 
doubted,  and  it  was  doubted  whether  both  principle  and  justice  would  not 
have  been  belter  served  by  originally  making  it  only  prima  facie  evidence. 


TWYNe's    CASE.  53 

and  a  question  of  actual  intent,  ji'et  it  was  declared  to  be  "too  firmly  estab- 
lished by  the  authority  of  adjudged  cases  to  be  judicially  overruled  :"  and 
again  in  Woodrow  v.  Davis,  et  al.  2  B.  Monroe,  298,  where  an  earnest 
attack  appears  to  have  been  made  upon  the  doctrine,  the  court  declared  that 
no  principle  had  been  more  conclusively  settled  in  that  state,  by  adjudged 
cases,  or  more  invariably  recognized  and  applied,  than  that  which  denounces 
a  retention  of  the  possession,  and  use,  and  ostensible  ownership  of  amovable, 
after  an  absolute  sale  of  the  title,  as  a  fraud,  conclusive  and  intraversable,  as 
against  previous  creditors,  and  subsequent  creditors  who  have  become  such 
while  that  possession  was  retained,  and  against  purchasers,  bona  fide  ;  and 
that  it  was  beyond  the  power  of  the  courts  now  to  change  it.  And  a  continued 
possession  by  the  vendor,  as  ostensible  owner,  after  an  absolute  bill  of  sale, 
though  it  be  under  articles  of  agreement  with  the  vendee  that  the  vendor 
shrill  be  employed  a-s  his  overseer,  or  under  a  contract  of  hire,  is  equally 
fraudulent  and  void  ;  Stephens'  Administrator  v.  Barnett,  Adm.,  7  Dana, 
257.  201;  Woodrow  v.  Davis,  et  al.  And  not  only  must  possession  be 
delivered,  but  it  must  continue  in  the  vendee  ;  Meredith  v.  Sanders,  2  Bibb, 
101  ;  for  the  matter  is  not  helped  by  a  temporary  delivery,  and  are-delivery 
on  loan,  though  the  sale  and  loan  be  honest,  and  the  sale  be  on  valuable  con- 
sideration, for  it  is  a  trust,  and  gives  the  vendor  a  false  credit :  and  it  is  error 
to  leave  the  matter  to  a  jury  ;  Goldsbury  v.'  May,  1  Littell,  254  ;  and  a  re- 
delivery on  hiring  or  other  bailment  would  be  equally  bad  i  and  no  interven- 
tion of  third  persons,  as,  by  a  sale  through  the  medium  of  a  trustee  or  agent, 
and  a  hiring  by  the  vendee  to  the  trustee,  and  b)'^  the  trustee  to  the  vendor, 
or  other  management,  will  avail ;  if  the  possession  be  hot  actually  and  visibly 
transferred  and  vested  with  the  title, 'the  sale  is  void  by  "  inexorable- judg- 
ment" of  law,  without  regard  to  fairness  of  purpose  or  value  of  considera- 
tion ;  Laughlin  v.  Ferguson.  Of  course,  the  vendee  is  not  obliged  to  keep 
the  possession  forever;  but  he  cannot  transfer  it  to  any  one  but  a  stranger 
to  the  contract-,  unless  he  has  remained  in  possession  long  enough  to  show 
that  the  delivery  to  him  was  not  merely  formal  and  colourable  ;  Brecken- 
ridge  v.  Anderson,  3  J.  J.  Marshall,  710.  714.  And  the  two  last  cited  cases 
show,  that  where  property  is  held  in  trust,  an  absolute  sale  is  equally  within  the 
rule  ;  but  in  the  case  of  the  sale  of  a"  chattel  at  the  time  in  possession  of  another 
.on  hire,  the  vendee's  not  having  possession  till  the  hiring  is  ended,  is  neither 
fraud,  nor,  alone,  evidence  of  it ;  for  one  is  the  saJe  of  a  chattel,  and  the  other  of 
a  reversion  :  and  in  the  latter  case,  the  legal  possession  is  considered  as  being 
connected  with  the  right  of  property,  and  as  following  the  transfer  of  it  ; 
Butt  v.  Caldwell,  4  Bibb,  458.  -The  rule  of  fraud  in  law  applies  only  to 
•  voluntary  sales,  and  not  to  coercive  sales  by  process  of  law  ;  Greathouse, 
&c.,  V.  Brown,  5  Monroe,  280  ;•  yet  leaving  possession  with  the  former 
owner  in  such  case,  though  not  a  fraud  in  law,  is,  without  explanation,  some 
evidence  of  fraud  in  fact;  Breckenridg.e  v.  Anderson;  Laughlin' v.  Fergu- 
son ;  Stephens'  administrator  v.  Barnett,  adm.  ;  and  that  fact  alone  would 
be  sufficient  to  authorize  the  jury  to  infer  fraud  in  fact,  if  they  saw  fit; 
Kilby  v.^Haggin,  3  J.  J.  Marshall',  208  ;  Allen  et  al.  v.  Johnson,  4  id.  235, 
237.  And  this  exception  extends  only  to  an  actual  sale  by  the.  sheriff, 
according  to  the  requisitions  of  the  law  ;  for  it  is-only  when  the  l&gal  for- 
malities are  followed,  that  sufficient  fairness  and  notoriety  are  presumed  ; 
and  a  private  voluntary  sale  by  the  debtor  to  pay  debts  foj:  the  satisfaction 


54  smith's     LEADING     CASES. 

of  which  an  execution  is  in  the  hands  of  the  sherifT,  would  not  be  within 
the  exception;  Laughlin  v.  Ferguson,  &c.:  and  ihougli  there  be  a  formal 
sale  by  the  sheriif,  yet  if  it  be  in  fact  collusive,  and  made  by  the  private 
agreement  and  understanding  of  the  parties,  and  not  by  coercion  of  law,  it 
becomes  subject  to  the  same  rules  of  law  in  regard  to  possession,  which  are 
applied  to  private  sales;  and  the  bare  act  of  leaving  the  property  in  posses- 
sion of  the  debtor,  renders  the  sale  ipso  facto  fradulent  and  void;  Stephens' 
Administrator  v.  Barnett,  Adm.,  7  Dana,  257.  260.  As  to  transfers  not 
absolute,  the  rule  is,  that  if  by  the  legal  operation  of  the  deed  or  convey- 
ance, the  title  does  not  pass  absolutely,  but  only  conditionally  or  contingently, 
then  the  requirement  of  possession  attending  the  title  is  satisfied  without 
delivery  of  possession.  The  contingency,  however,  must  be  in  the  title; 
for,  if  the  legal  effect  of  the  deed  be,  an  executed  contract  passing  the  whole 
property  absolutely,  a  collateral  agreement  inserted  in  the  deed,  that  the 
owner  will  deliver  possession  when  called  on,  will  not  have  any  saving' 
efficacy ;  the  sale  will  be  fraudulent  and  void  in  law ;  Grimes  v.  Davis,  1 
Littell,  241  ;  and  the  contingency  or  conditionality  must  spring  from  the 
operation  of  the  deed  itself;  for  an  extrinsic  agreement  to  covert  an  absolute 
transfer  into  a  conditional  one,  is  not  admissible  ;  Hundley  v.  Webb,  and 
Laughlin  v.  Ferguson.  A  mortgage  presents  a  case  of  that  kind  of  contingency 
in  the  transfer  of  the  title,  which  saves  the  necessity  of  delivering  possession : 
the  subject  is  examined  in  Head,  Hobbs  et  al.  v.  Ward,  et  al.,  1  J.  J.  Marshall, 
280;  and  it  is  determined  that,  till  forfeiture,  the  title,  effectually  and  vir- 
tually, does  not  pass;  and  therefore  retaining  possession  is  not  fraudulent 
per  se  ;  and  that,  retaining  possession,  even  after  forfeiture,  is  not  "  of  itself, 
unconnected  with  any  other  circumstance  of  lapse  of  tim-e  or  the  conduct  of 
the  mortgagee,  to  be  considered  a  strong  badge  of  fraud :  the  deed  is  still  a 
mortgage  ;  the  right  of  the  mortgagee  is  still  contingent  and  collateral ;  and 
the  possession  of  the  mortgagor  is  not  necessarily  inconsistent  with  the 
title."  But  though  it  is  conclusively  settled  that  in  case  of  a  mortgage 
non-delivery  is  not  a  fraud  in  law,  yet  it  seems  that  it  will,  even  before  for- 
feiture, be  competent  evidence  of  fraud  in  fact  for  the  jury  ;  M'Gowen  v. 
Hoy,  5  Littell,  239;  and  possession  after  forfeiture  certainly  ^^  may  be 
evidence  of  fraud,  and  combined  with  other  circumstances,  or  even  alone,  may 
be  satisfactory  to  a  jury  ;"  Bucklin  v.  Thompson,  1  J.  J.  Marshall,  22.3.  227  ; 
but  it  is  to  have  no  more  weight  than  the  circumstances  show  it  to  be  enti- 
tled to  ;  and  "  in  many,  perhaps  most  cases,  it  may  not  be  any  evidence  of 
even  a  fraud  in  fact ;"  Snyder  v.  Hitt,  2  Dana,  204.  A  conveyance  in  trust 
for  creditors  is  another  instance  of  a  transfer  not  absolute,  to  which  the 
exception  applies,  that  possession  consistent  with  the  terms  and  objects  of 
the  deed  is  not  legal  fraud,  though  it  is  admitted  to  be  a  circumstance  from 
which  fraud  may  be  inferred,  susceptible  of  being  counteracted  by  proof, 
and  explained  or  reconciled  with  honesty  and  fair  dealing  ;  and  therefore 
the  fjict  that  one  member  of  a  firm  which  has  made  an  assignment  in  trust 
for  creditors,  remains  in  possession  as  an  agent  employed  by  the  trustees  to 
assist  them  in  executing  the  trust,  does  not  avoid  the  assignment;  Vernon, 
&c.  V.  Morton  and  Smith,  8  Dana,  247.  254;  Christopher  v.  Covington  and 
Smith,  2  B.  Monroe,  357,  358.  Conditional  sales  are  not  affected  by  this 
rule  of  fraud,  not  being  present  conveyances  of  the  title  ;  and  delivery  to 
the  vendee  is  not  fraudulent  in  law ;  yet  it  may  go  to  the  jury  as  evidence 


twyne'scase.  55 

from  which  a  fraudulent  intent  may  be  found  by  them  ;  Baylor  v.  Smither's 
Heirs,  1  Littell,  106. 

In  Illinois  ;  in  Thornton  v.  Davenport  et  al.,  1  Scammon,  296,  (con- 
firmed in  Kitchell  v.  Bratton,  id.  301,)  it  was  settled,  that  upon  an  abso- 
lute bill  of  sale,  non-accompaniment  of  possession,  is  a  fraud  in  law  ;  but  if 
the  possession  be  in  accordance  with  the  right  and  title  created  by  the  deed, 
it  is  not  fraudulent :  that  mortgages,  marriage-settlements,  and  limitations- 
over,  are  valid,  without  delivery,  if  possession  be  with  the  person  at  the 
time  entitled  to  it;  and  therefore  a  bona  fide  mortgage  without  delivery  of 
possession  was  held  good.  One  judge  dissented,  and  held  that  retention  on 
a  mortgage  was  equally  fraudulent  as  on  an  absolute  sale  ;  and  approved 
the  principle  in  Clow  and  another  v.  Woods,  {below.) 

In  Alabama  after  much  confusion  and  apparent  contradiction,  the  rule 
appears  to  be  settled  substantially  to  the  same  effect.  In  Hobbs  v.  Bibb,  2 
Stewart,  54,  the  principle  and  the  cases  are  examined  at  length,  by  Lipscomd, 
C,  J.,  and,  with  a  strong,  and  not  very  temperate  expression  of  opinion, 
against  the  rule  of  fraud  in  law,  he  decides,  that  on  a  sale  and  re-hiring  of 
negroes,  it  should  go  to  the  jury,  whether  there  was  a  fraudulent  intent  or  not. 
In  Martin  v.  White,  Admn.,  id.  162,  on  the  authority  of  this  case,  it  was 
decided,  by  Collier,  J.,  that  possession  remaining  with  the  vendor,  after  a 
bill  of  sale  absolute,  was  not  fraudulent,  but  only  prima  facie  evidence  of 
fraud.  In  Ayres  v.  Moore,  id.  336,  before  Lipscomb,  C.  J.,  and  Saffold, 
J.,  the  former  held,  that  the  presumption  of  fraud  might  be  explained  and 
rebutted ;  but  that  the  facts,  that  the  consideration  was  ample  and  bona  fide 
paid,  and  the  bill  of  sale  recorded,  were  not  a  sufficient  explanation  ;  that 
the  jury  must  be  satisfied  that  a  sufficient  reason  for  the  retention  existed, 
and  that  no  person  who  had  used  ordinary  prudence  had  been  deceived; 
for,  notwithstanding  the  consideration  were  ample  and  bona  fide  paid,  and 
notice  given  to  all  the  world,  yet  if  the  conveyance  were  made  with  a  view 
to  defraud  creditors,  and  the  purchaser  knew  of  this  design,  the  title  was 
void  :  Saffold,  J.,  in  a  long  and  very  intelligent  opinion,  held,  that  the  true 
doctrine  was  that  of  the  Federal  courts,  that  it  is  constructive  fraud,  if  posses- 
sion be  not  consistent  with  the  deed;  and,  therefore,  that  the  rule  in  Hobbs 
V.  Bibb,  should  be  narrowed,  so  as  to  allow  the  jury  the  smallest  possible 
discretion  ;  and  he  says,  as  has  been  said  in  this  note,  that  the  substance  of 
the  principle  in  Edwards  v.  Harben,  and  Hamilton  v.  Russel,  is,  "  that  the 
possession  shall  not  be  incompatible  with  the  object  of  the  deed,  or  that  it 
shall  be  consistent  with  its  spirit  and  intent."  In  Paulling  v.  Sturgus  et 
al.,  3  Stewart,  96,  the  dictum  of  Saffold,  J.,  is,  that  the  matter  must  be 
explained  to  the  satisfaction  of  the  court  and  jury.  In  Miller  v.  Thompson, 
3  Porter  196,  Saffold,  C.  J.,  commented  on  the  cases  of  Hobbs  v.  Bibb, 
and  Ayres  v.  Moore;  he  says,  that  the  former  decided,  that  retention  of  pos- 
session is  not  a  fraud,  per  se,  but  a  presumption  that  may  be  rebutted,  but 
that  what  would  be  sufficient  to  rebut  this  presumption,  was  left  undecided  ; 
that  the  decision  in  Ayres  v.  Moore,  was,  that  the  consideration  being  bona 
fide,  and  the  bill  recorded  was  not  enough  ;  "  but,  it  must  appear,  that  the 
sale  was  not  made  to  hinder  or  delay  creditors  ;"  and  that  this  is  to  be  deter- 
mined by  the  jury  from  all  the  circumstances  :  and  he  further  says,  that  a 
consequence  of  the  opinion  of  the  court  in  Ayres  v.  Moore  "  would  appear 


56  smith's    LEADING    CASES. 

to  be,  that  if 'possession  does  not  accompany  and  follow  the  deed,'  in  the 
true  acceptation  of  these  terms— that  is,  if  the  possession  be  inconsistent 
with,  and  not  subservient  to,  the  object  of  the  conveyance,  the  sale  must  be 
found  by  the.  jury,  under  the  instruction  of  the  court,  fraudulent  and  void, 
ualess  the  failure  be  satisfactorily  explained  ;  though  there  be  no  other  objec- 
tion to  the  conveyance  :"  and  he  said  that  the  two  cases  referred  to  had 
been  influenced  by  Bissell  v.  Hopkins,  which  had  since  been  departed  from. 
In  Bank  of  Alabama  v.  M'Dade,  4  Porter,  252,  negroes  sold  at  public  auc- 
tion by  a  trustee  for  creditors,  were  retained  two  months  to  aid  in  gathering 
•in  the  crop  which  they  had  cuUivated  :  the  court  held,  on  the  principle  of 
Kidd  v.  Rawlinson,that  the  publicity  of  the  sale  dispenses  with  immediate 
delivery  ;  but  if  the  purpose  of  leaving  them  was  unfair  ;  or  if  left  so  unrea- 
sonable a  lime  as  to  afford  a  presumption  that  the  sale  was  colourable  ;  then 
it  became  fraudulent  and  void;  but  that  under  the  circumstances  in  this 
case,  "the  court  might  with  propriety  have  instructed  the. jury,  that  if  the 
possession  was  bona  fide,  such  possession  did  not,  per  se,  avoid  the  sale." 
In  Blocker,  adm'r  v.  Burness,  2  Judges'  Alabama,  354,  (1841),  where  pos- 
session was  retained  after  an  absolute  sale,  the  jury  were  instructed  that  if 
they  beliieved  from  the  evidence,  that  the  transaction  was  upon  fair  and 
sufficient  consideration,  was  bona  fide,  and  not  intended  to  hinder  and  delay 
creditors,  the  sale  was  valid  ;  and  this  instruction  was  approved  by  a  majority 
of  the  court.  Ormond,.  J.,  approved,.because  he  conceived  it  to  be  the  point 
decided  in  Ayres  v.  Moore,  and.  he  agreed  to  Ayres  v.  Moore,  though  he 
could  not  see  the  difference  between  it  and  Hobbs  v.  Bibb.  Goi-dthwaite, 
J.,  concurred,  and  thought  Ayres  v.  Moore  did  not  affecfthe  general  prin- 
ciple of  Hobbs  v,  Bibb.  Collier,  C.  J.,  dissented,  because  he  thought  that 
the  principle  established  in  Ayres  v.  Moore  required,  that  besides  repelling 
the  actual  presumption  of  an  intent  to  defraud  or  delay  creditors,  the  legal 
.piresttrnptionof  fraud  must  be  removed,  by  showing  sufficient  special  reasons 
why  possession  does  not  follow  the  sale ;  for  the  sale  might  be  fair  and  bona 
.fi'de,  and  yet  possession  be  retained  by  subsequent  arrangement,  in  a  manner 
to  make  it  fraudulent.  And  this  opinion  of  Collier,  <J.  J.,  appears  now  to 
be  recognized  as  tJie  law.  After  any  such  sale  as  in  its  nature  contemplates 
an  immediate  change  of  possession,  the  retention  of  possession  is  prima  facie 
evidence,  or  a  legal  presumption,  of  fraud,  and  if  unexplained,  would  be 
sufficient  to  authorize  a  verdict  against  the  vendee ;  the  presumption,  how- 
ever, may  be  rebutted,  or  explained  away  by  circumstances ;  but  it  will  not 
^e  removed,' unless  special  reasons  "for  the  retention,  sufficient  in  the  judg- 
ment of  the  court,  are  shown;  and  when  the  vendor  is  insolvent,  and  no  rea- 
sons are  shown  for  retaining  possession,  the  inference  of  fraud  is  conclusive  in 
law;  Planters'  and  Merchants'  Bank  of  Mobile  v. -Borland,  5  Alabama,  531. 
5'48  ;  Borland  v.  Mayo,  8  Id.  106,  11.5._  In  cases  of  sales  not  absolute  and 
.  immediate,  possession  according  to  the  terms  of  the  deed,  is  not  a  badge  of 
fraud  ;  accordingly, 'in  mortgages  and  deeds  of  trust,  possession  until  the 
time  of  forfeiture  or  of  sale,  is  not  any  evidence  of  fraud ;  but  possession 
after  that  time  is  evidence  of  fraud,  though  capable  of  being  rebutted  ;  Magee 
V.  Carpenter,  4  Alabama,  469  ;  Ravisies  v.  Alston,  Trustee,  5  Id.  297  ;  Wis- 
wall  V.  Ticknor  and  Day r:  6  Id.  179  ;  Desha,  Shepherd  and  Co.  v.  Scales, 
Id.  356. 

In  Indiana,  the  principle  and  rule  established  in  Jordan  v.  Turner,  3 


TWYNE's    CASE.  57 

Blackford,  309,  confirrned  and  acted  on  in  Watson  and  Another  v.  Williams 
and  Another,  4  id.  26,{ippears  to  be  in  precise  accordance  with  the  law  of  the 
Federal  courts  as  above  slated,  and  as  more  fully  developed  in  the  Virginia 
cases,  namely,  that  a  possession  in  the  vendor,  inconsistent  with  the  con- 
veyance, is  a  fraud  in  law-;  but  possession  consistent  with  the  deed,  though 
it  may  be  prima  facie  evidence  of  fraud,  may  yet  be  explained,  and  shown 
to  be  necessary  and  fair:  "No  evidence  can  be  admitted  to  explain  a  pos- 
session which  is  inconsistent  with  the  contract :"  but  evidence  to  explain 
the  possession,  and  prove  fairness,  may  be  received,  "  if  such  evidence,  and 
such  retaining  of  possession  by  the  vendor,  are  consistent  with  the  contract 
(or  conveyance) ;  as,  if  it  be  a  conditional  sale,  or  a  mortgage,  or  if  it  is 
part  of  the  original  contract,  that  the  vendor  should  retain  possession,  until 
after  a  defauh  should  be  made  in  the  condition  of  the  sale;  or  when  the 
situation  of  the  parties  or  the  goods  is  such,  that  immediate  possession  can- 
not be  taken,  as  in  the  case  of  a  ship  at  sea,  or  a  growing  crop ;  or  where, 
from  any  other  legal  and  bona  fide  circumstance,  immediate  possession 
cannot  be  taken."  On  this  distinction  all  the  later  cases  have  gone.  On 
an  absolute  bill  of  sale,  it  was  held  in-  Foley  and  another  v.  Knight,  4  id. 
420,  that  evidence  to  show  an  agreement,  as  part  of  the  contract,  that  the 
vendor  should  retain  possession  was  inadmissible,  because  it  contradicted 
the  bill;  but  subject  to  this  restriction,  that  possession  contradictory  of  the 
bill  w^as  inadmissible,  evidence  might  be  received  to  show  the  possession 
was  not  fraudulent.  In  mortgages,  as  the  mortgagee  has,  upon  a  simple 
mortgage,  an  immediate  right  to  take  possession,  (Case  v.  Winship,  4  id. 
425,)  retention  of  possession  by  the  mortgagor,  is  prima  facie  evidence  of 
fraud ;  Hankins  and  another  v.  Ingols,  4  id.  35  :  But  a  mortgage  does  not, 
like  an  absolute  sale,  necessarily  import  that  the  possession  is  to  be  with  the 
grantee,  and  the  parties  may  agree  as  to  who  shall  have  the  possession, 
and  the  principle  still  holds,  that  inconsistency  of  possession,  with  the  deed, 
is  fraud  in  law,  but  possession  not  inconsistent  with  the  deed,  may  be 
explained  ;  and,  therefore,  where  the  mortgage-deed  declared,  that  the  pro- 
]>erty  is  delivered  to  the  mortgagee  in  his  own  right,  possession,  use  and 
trading  with  the  property,  by  the  mortgagor,  was  decided,,  per  se,  to  render 
the  mortgage  fraudulent  and  void  ;  Jordan  v.  Turner ;  but  when  nothing 
was  said  in  themortgage-deedi-as  to  who  was  to  have  possession,  evidence 
to  show  why  possession  was  retained,  and  that  the  retainer  was  not  frau- 
dulent, was  decided  to  be  admissible ;  Watson  and  Another  v.  Williams 
and  another;  Hawkins  and  another  v.  Ingols.  This  is  the  very  rule  of  the 
Federal  Courts,  as  declared  in  Conard  v.  Atlantic  Ins.  Co.,  and  D'Wolf  v. 
Harris.  The  dicta  in  Hankins  v.  Ingols,  in  case  of  a  mortgage,  that  reten- 
tion is  prima  facie  evidence  of  fraud,  must  be  understood,  it  is  supposed,  to 
apply  to  cases  like  that  before  the  court,  where  possession  was  not  incon- 
sistent with  the  conveyance  ;  and  not  to  mean,  that  possession  inconsistent 
with  the  deed,  is  not  absolutely  fraudulent. 

In  New  Hampshire,  the  principle  appears  to  be  nearly  the  same,  though 
declared  in  a  form  somewhat  different:  in  fact,  instead  of  the  rule  of  the 
Federal  courts,  and  of  Virginia,  being  established,  the  principle  and  reason 
on  which  that  rule  is  based  are  used  as  guides.  In  Coburn  v.  Pickering,  3 
New  Hampshire,  415, — to  the  opinion  in  which  case,  by  Richardson,  C.  J., 
the  reader  is  specially  referred,  as  containing  a  very  luminous  exposition  of 


58  SMITH 'SLEADINOCASES. 

this  subject, — it  is  said,  "to  be  settled,  as  firmly  as  any  legal  principle  can 
be  settled,  that  the  fraud  which  renders  void  the  contract,  in  these  cases,  ia 
a  secret  trust,  accompanying  the  sale,  and  that  in  cases  of  absolute  sales, 
possession  and  use,  by  the  vendor,  after  the  sale,  is  always  prima  facie,  and, 
if  unexplained,  conclusive  evidence  of  a  secret  trust.  It  is,  therefore,  very 
clear,  that  fraud  is  sometimes  a  question  of  fact,  and  sometimes  a  question 
of  law.  When  the  question  is.  Was  there  a  secret  trust?  it  is  a  question 
of  fact ;  but  when  the  fact  of  a  secret  trust  is  admitted,  or  in  any  way  estab- 
lished, the  fraud  is  an  inference  of  law,  which  a  court  is  bound  to  pro- 
nounce." The  amount  of  this  is,  that  the  presumption  of  fraud,  arising 
from  a  reserved  trust,  cannot  be  rebutted  :  but  the  presumption  of  a  reserved 
trust,  arising  from  possession,  may;  in  other  words,  the  presumption  of 
fraud  arising  from  possession  may  be  explained  and  rebutted  by  showing 
that  the  possession  was  not  retained  for  the  secret  benefit  of  the  vendor,  and 
no  other  explanation  than  one  which  rebuts  a  secret  trust  can  be  received  ; 
and  it  was  therefore  decided  in  this  case,  than  an  agreement  subsequent  to 
the  sale,  that  the  vendor  should  retain  possession  and  pay  rent,  was  no  suffi- 
cient explanation  of  possession,  for  it  did  not  disprove  a  secret  trust:  and  the 
same  point  is  decided  in  Paul  v.  Crooker,  8  id.  288.  See  also  Parker  v. 
Patten,  4  id.  176;  Trask  v.  Bowers,  id.  309.  The  later  cases  are  perhaps 
even  more  stringent ;  for  it  has  been  decided  that  upon  an  absolute  sale,  the 
mere  fact  of  possession  being  retained  by  the  vendor  on  an  agreement  to 
store  the  property  for  the  purchaser  for  a  certain  time,  rendered  the  sale 
fraudulent  against  creditors;  Page  v.  Carpenter,  10  id.  77.  As  to  the 
notoriety  and  length  of  continuance,  that  must  characterize  the  transfer  of 
possession  before  the  property  can  be  allowed  to  go  back,  on  a  contract  of' 
hiring,  to  the  vendor,  see  French  v.  Hall,  9  id.  137.  146;  Clark  v.  Morse, 
10  id.  236.  In  regard  to  mortgages,  as  delivery  of  possession  is  not  essen- 
tial to  their  validity  and  completeness,  the  retention  of  possession  was  not 
considered  fraudulent,  prior  to  the  act  of  June  22,  1832,  "To  prevertt 
frauds  in  the  transfer  of  personal  property;"  Haven  v.  Low,  2  id.  13; 
Ash  v.  Savage,  5  id.  545.  But  that  act  provided  that  no  mortgage  of  per- 
sonal property  thereafter  made,  shall  be  valid  against  any  other  than  the 
parties  thereto,  unless  possession  of  the  mortgaged  property  be  delivered  to 
and  retained  by  the  mortgagee,  or  unless  the  mortgage  be  recorded  in  the 
office  of  the  clerk  of  the  town  where  the  mortgagor  resides  at  the  time  of 
making  it;  see  Hoit  v.  Remick,  11  id.  285;  and  under  this  act,  actual 
notice,  it  appears,  will  have  the  same  effect  as  recording  the  mortgage  ; 
Low  v.  Pettengill,  12  id.  337.  339;  but  see  Smith  v.  Moore,  11  id.  55.  64. 
If  the  mortgagor  reside  out  of  the  state,  and  the  property  be  also  out  of  the 
state,  at  the  time  of  the  execution  of  the  mortgage,  and  the  mortgagor  after- 
wards move  with  the  property  into  the  state,  the  validity  of  the  mortgage 
will  not  be  affected  by  this  statute  ;  Olfutt  v.  Flagg,  10  id.  46.  49  ;  but  if 
the  property  be  at  the  time  of  the  mortgage  within  the  state,  and  the 
mortgagor  reside  out  of  it,  the  statute  operates  upon  the  transaction,  but 
can  be  satisfied  only  by  the  mortgagee's  taking  possession,  which  must  be 
an  actual  and  continued  possession  such  as  is  required  on  absolute  sales ; 
Smith  V.  Moore,  11  id.  55.  65,  Yet  even  where  the  mortgage  is  duly 
recorded  under  this  statute,  it  would  seem  that  retention  of  possession  for  a 


twyne'scase.  59 

very  great  length  of  time,  may  be  evidence  to  the  jury,  tending  to  show- 
actual  fraud;   North  v.  Crowell,  11  id.  251,  254. 

In  South  Carolina,  in  the  recent  case  of  Smith  v.  Henry,  1  Hill,  16,  the 
rule  is  referred  to  the  same  principle  of  a  secret  and  corrupt  trust,  or  bene- 
fit reserved  to  the  grantor  ;  and  a   further  .distinction  is  founded  upon  it, 
betw^een  the  case  where  the  conveyance  is  upon  a  new  and  full  consideration, 
and  where  it  is  made  to  a  creditor  in  consideration  of  indebtedness  ;  in  the 
former,  the  transaction  not  being  necessarily  a  benefit  to  the  grantee,  there 
is   no  sufficient  ground  to  conclude  him  of  fraud,  even  if  the  grantor  was 
actuated  by  corrupt  motives  ;  but  as  to  the  latter,  as  the  grantee  is  directly 
benefited  by  gaining  a  preference   over  the  other  creditors,  the  conclu- 
sion is  irresistible,  that  he  is  a  party  to  this  corrupt  design  of  the  debtor 
to  gain  an  advantage  to  himself  out   of  the  proj)erty  at  the  expense  of  his 
creditors,  and  that   the  retainer  of  possession  is  a  bribe   given  for  the  pre- 
ference ;  "  this  is  the  conclusion  of  law,  the  fact  being  generally  incapable 
of  proof."      In  Anderson  et  al.  v.  Fuller  et   al.,  1  M'Mullan's  Equity,  27, 
the  same  principle  is  adopted,  and  applied  to  lands  ;■  and  in  that  case,  the 
Chancellor  says  :  "  It  is  now  well  settled  that  a  debtor  has  the  right  to  give 
a  preference  among  his  creditors ;  but  if,  in   the  deed  of  assignment,  he 
secures  any  advantage  or  contract  to  himself,  this  provision  invalidates  the 
deed.     Now,  the  circumstance  of  leaving  the   debtor  in  possession  of  the 
property,  supplies  the  place  of  a  provision  to  that  effect  in  the  assignment 
or  conveyance.     The  law  presumes  an  understanding  between  the  parties; 
infers  the  existence  of  a  secret  trust ;  and,  so  far  as  the  rights  of  creditors 
are  affected,  the  deed  is  void:"  See  Cox  et  al.  v.  M'Bee  &  Henning,  1 
Spears,  195.     This  distinction  is  accordingly  estabHshod  in  South  Carolina  ; 
that  where  a  pre-existing  debt  is  the  consideration  of  a  conveyance,  reten- 
tion of  possession  and  use,  without  a  new  agreement  to  that  efiect,  on  ade- 
quate consideration,  is  a  fraud  in  law ;  but  if  there  be  a  new  contract  of 
hiring,  on  sufficient  consideration,  it  will  rebut  the  presumption  of  fraud  ; 
Jones  &  Briggs  v.  Blalce  and  wife,  2  Hill's  Chancery,  629.  637  ;  xMaples 
V.  Maples,  Rice's  Equity,  301  ;  but  retention  of  possession  after  an  absolute 
sale  for  a  price  paid,  is  not  conclusively  fraudulent,  but  only  prima  facie 
evidence  of  fraud,  and  capable  of  explanation  ;  Terry  v.  Belcher,  Howard 
V.  Williams,  Reeves  v.  Harris,  1  Bailey,  508.  575.  563.     With  regard  to 
the  latter  case,  the  practice  as  now  settled  appears  to  be,   that  upon  mere 
retention  of  possession  on  an  absolute  bill  of  sale,  there  being  no  explanation 
given,  the  court  will  instruct  the  jury  that  the  retention  constitutes  fraud  ; 
but  an  explanation  may  be  offered  sufficient  in  law  to  rebut  the  presumption, 
and  then  the  whole  case  will  be  referred  to  the  jury  ;  the  burden  of  proving 
fairness   being  on  the  party  who  seeks  to  sustain   the  sale  ;  a  re-hiring  for 
wages,  would  be  a  sufficient  explanation.     Terry  v.  Belcher,  1  Id.  568 ; 
Smith  v.  Henry,  2  Id.   118.     There  is  a  class  of  cases,  generally  sales  or 
gifts  of  slaves,  in  which  possession  is  considered  as  transferred,  though  not 
visibly  changed.     This  includes  not  merely  the  common  case  of  a  convey- 
ance to  a  trustee  for  wife  and  children,  where  it  is  held  that  "  the  possession 
of  the  husband  is  the  possession  of  the  wife  and  children,  and  possession  and 
use  for  their  benefit  is  consistent  with  the  object  and  provisions  of  the  deed  ;" 
but  also  gifts  or  sales  by  a  father  or  grandfather  to  his  minor  child  living 
with  him  at  the  time  of  the  sale  or  gift ;  in  such  case,  the  possession  of  the 


60  smith's    LEADING    CASES. 

grantor  is  the  possession  of  the  minor  imder  his  guardianship;  Kid  v, 
Mitchell,  1  Nott  v.  M'Cord,  535 ;  Howard  v.  Williams,  1  Bailey,  575  ;  no 
laches  is  imputable  to  the  grantee,  because  of  his  tender  age  ;  Steele  v. 
M'Knight,  1  Bay,  64  ;  and  as  the  parties  necessarily  live  together,  to  hold 
that  the  father's  possession  was  not  the  possession  of  the  child,  would  ren- 
der such  gifts  impossible  ;  Curry's  Exor.  v.  Ellerbe,  Consll;  Court,  cited  1 
Bailey,  578  ;  but  this  principle  does  not  extend  to  gifls  or  sales  to  a  grown- 
up s-ister-in-law,  living  in  the  house  of  the  donor,  for  her  living  there  is  not 
necessary,  and  she  is  capable  of  taking  possession  ;  Smith  v.  Henry,  2 
Bailey,  1 18  ;  nor  to  gifts  to  daughters  of  a  sister  living  with  the  donor  ;  but 
in  such  case  retention  of  possession  would  be  evidence  of  fraud,  till  clearly 
and  fully  explained;  Cordery  v.  Zealy,  Id.  206.  See  Hudnal  v.  Wilder, 
Ex'or  of  Teasdall,  4  M'Cord,  295,  where  it  is  said,  that  to  repel  the  general 
presumption  of  fraud,  the  property  should  be  kept  for  the  separate  use  of 
the  donee,  and  the  profits  and  labour  (of  a  slave)  kept  as  an  accumulating 
fund  for  the  donee's  benefit ;  and  that  if  it  is  kept  by  the  donor  as  his  own, 
and  for  his  own  benefit,  such  possession  is  as  inconsistent  with  the  professed 
object  of  the  deed,  as  if  made  to  any  other  person,  and  ought  to  raise  the 
same  suspicion.  This  distinction  is  not  attended  to  in  the  later  cases,  but  is 
not  inconsistent  with  them;  it  seems  indeed,  to  be  supported  in  Smith  v. 
Henry,  2  Hill,  21.  Delivery  of  possession  on  a  conditional  sale, — ^which 
is  regarded  as  a  species  of  bailment,  transferring  a  qualified  property,  the 
absolute  property  remaining  in  the  vendor, — does  not  divest  the  vendor's 
title  as  in  favour  of  vendee's  creditors  ;  whether  the  condition  be  written, 
Dupree  v.  Harrington,  (Harper's)  State  Reports,  391,  or  only  verbal. 
Reeves  v.  Harris,  Bailey  v.  Jennings,  1  Bailey,  563.  But  see  Bennett  v. 
Sims,  Rice,  421,  where  a  disposition  is  shown  to  consider  such  sales  absolute 
as  to  subsequent  creditors.  Retention  of  possession  on  a  mortgage  before 
condition  broken,  is  no  evidence  of  fraud  ;  and  after  is  not  conclusive  :  Gist 
V.  Pressley  and  others,  2  Hill's  Chancery,  318.  328  ;  Maples  v.  iNIaples, 
Rice's  Equity,  301;  Dupree  v.  Harrington, .  and  Reeves  v.  Harris, 
diet.  ace. 

In  Delaware,  by  a  statute  passed  14  Geo.  2,  "  to  prevent  frauds  by  clan- 
destine bills  of  sale,"  it  is  provided  that  bills  of  sale  of  chattels  shall  not 
pass  the  property,  except  as  against  the  vendor,  unless  the  chattels  shall  be 
actually  delivered  into  the  possession  of  the  vendee,  as  soon  as  conveniently 
may  be,  aftef  the  making  of  the  bill  of  sale ;  and  that  if  the  properly  after- 
wards returns  or  comes  into,  and  continues  in  the  possession  of  the  vendor, 
it  shall  be  liable  to  the  demands  of  all  creditors  of  the  vendor ;  Laws  of 
Delaware,  p.  75  :  but  this  does  not  apply  to  public  sales  by  an  officer  of 
the  law  ;  Perry  v.  Foster,  3  Harrington,  293. 

(2).  The  second  class,  in  which  no  difl^irence  is  recognized  between  abso- 
lute sales  and  mortgages,  includes  New  York,  (before  the  late  statute,) 
Pennsylvania,  Connecticut  and  Vermont. 

In  New  York,  at  an  early  period,  in  Vredenberg  v.  White  &  Stout,  1 
Johnson's  Cases,  137,  the  court  seems  to  have  proceeded  directly  upon  the 
rule  adopted  in  the  Federal  courts  ;  but  in  Sturtevant  &  Keep  v.  Ballard, 
9  Johson,  337,  (1812)  the  dead  reckoning  was  corrected  by  a  new  observa- 
tion of  the  English  cases,  by  Chief  Justice  Kent,  and  the  rule  defined  in  a' 
new  and  stricter  form.     A  voluntary  sale  of  chattels,  absolute  or  contingent. 


T  W  Y  N  E  '  S    C  A  S  E.  61 

with  an  agreement  in  or  out  of  the  deed,  that  the  vendor  may  keep  posses- 
sion, or,  if  possession  be  kept  without  any  agreement,  Jennings  v.  Carter 
&  Wilcox,  2  Wendell,  446,  "  except  in  special  cases,  and  for  special  rea- 
sons, to  be  shown  to,  and  approved  of  by,  the  Court,"  is  fraudulent  and  void 
as  against  creditors.     This  rule,  being  founded  on  public   policy,  and  the 
preventing  the  debtor  from  acquiring  a  false  credit  with   the   public,  steers 
quite  clear  of  any  consideration  of  intention,  that  not  being  the  seat  of  this 
species  of  fraud  ;  when  the  facts  are  settled,  it  is  a  priociple  of  legal  policy 
to  be  applied  by  the  courts,  and  not  a  question  of  motive  or  design  to  be 
dealt  with  by  the  jury 4  Jennings  v.  Carter  &  Wilcox  ;  Divver  &  Gunton 
V.  M'Laughlin  ;  id.  596  ;  and  the  "special  reasons"  upon  which  the  court 
have,  in  certain  cases,  excused   retention,  will  be  found  to   be  not  reasons 
tending  to  prove  that  the  intent  of  the  parties  was  fair,  but  reasons  founded 
either  on  necessity,  which  is  a  policy  stronger  than  the  policy  of  the  rule, 
or  on  such  notoriety,  as  satisfied  the  reason  of  the  rule.     The  principle  of 
necessity  has  operated  to  the  extent  of  modifying  the  application  of  the  rule, 
so.as  to  require  the  delivery  to  be,  not  immediate  and  absolute,  but  only  as 
soon  and  as  far  as  practicable  ;  as,  in  Beals  v.  Guernsey,  8  Johnson,  446, 
where,  on  the  sale  of  articles  then  in  the  storehouse  of  a  third  person,  deliv- 
ery was  attempted,  but  coiild  not  be  had,  on  account  of  the  sickness  of  the 
bailee  ;  and  in  Butts  v.  Swartwood,  2  Cowen,  431,  where  on  the  sale  of  an 
unfinished  article,  it  was  taken  from  the  shop  of  the  vendor,  and  left  at  his 
house  until  it  could  be  trimmed,  and  the  vendee  could  come  for  it  in  his 
sleigh  ;  but  in  Jennings  v.  Carter  and  Wilcox,  where  the  purchase  was  of 
cattle,  the  fact  that  the  vendee  had  no  farm  or  forage  was  held  no  sufficient 
excuse.     In  Bissel  v.  Hopkins,  3  Cowen,  166,  the  court,  upon  special  ver- 
dict,  held,  that  where  the   transaction  was  so  public  and   notorious- that 
nobody  was  deceived,  and  the  retaining  of  possession  was'  necessary  to 
enable  the  vendor  to  settle  his  business  as  a  public  officer,  the  case    might 
be  an   exception  ;  but  in  Divver  &  Gunton  v.  M'Laughlin,  this  case  was 
considered  as  going  extremely  far;  and  the  circumstances  are  obviously  so 
peculiar,  that  it  could  not  be  a  precedent  for  any  other  case.     Marriage- 
settlements  were  considered,  in  Sturtevant  &  Keep.  v.  Ballard,  as  not  being 
within  the  rule  ;  in  truth,  the  law  regards  the  possession  as  being  tranferred 
according  to  the  settlement,  as  vi^as  held  in  Ludlow  v.  Hurd  &  SeAvall,  19 
Johnson,  218.     Leaving  possession  after  a  sheriff''s  sale  seems  not  entirely 
to  be  excepted  ;  for  though  apparently  it  is  not  in  itself  conclusive  of  fraud, 
it  at  least  raises  a  strong  presumption  of  fraud.     M'Instry  v.  Tanner,  9 
Johnson,   135  ;  Farrington  &  Smith  v.  Caswell,  15  id.  430  ;  Dickenson  v. 
Cook,  17  id.  332  ;  Gardenier  v.  Tubbs  and  others,  21  Wendell,  169. — Thus 
the  matter  stood  before  the  Revised  Statutes,  which  enacted  that  after  Janu- 
ary 1,  1830,  every  sale,  mortgage,  and  conditional  sale,  without  immediate,  and 
actual,  and  continued  change  of  possession,  (see  Camp  v.  Camp,  2  Hill's  N. 
Y.,  628,)  shall  be  "presumed  to  be  fraudulent  and  void,"  &c,  ;  "  and  shall  be 
conclusive  evidence  of  fraud,  unless  it  shall  be  made  to  appear  on  the  part 
of  the  persons  claiming  under  such  sale  or  assignment,  that  the  same  was 
made  in  good  faith,  and  without  any  intent  to  defraud  such  creditors  or 
purchasers  ;"  2   Rev.    Stat.,    136,  ch.   7,   t.  2,  s.   5.      There  is  a  pretty 
obvious  inconsistency  between  the   latter  branch   of  this   statute  and  the 
former ;  indeed  it  now  appears  that  the  section,  as  introduced  by  the  revisers, 


62  smith's    LEADING    CASES. 

was  without  the  latter  clause,  and  that  it  was  added  by  the  legislature  ;  20 
Wendell,  548^  and  this  repugnancy,  and  the  obscurity  of  the  whole  statute, 
have  led  to  an  extraordinary  and  most  interesting  conflict  between  the  judi- 
ciary and  the  more  popular  constitution  of  the  Court  of  Errors.  The  view 
taken  of  the  statute  by  the  majority  of  the  Supreme  Court,  appears  to  have 
been,  that,  as  the  presumption  of  fraud  was  made  a  legal  presumption,  the 
court  must  judge  what  reasons  and  motives  would  be  satisfactory  for  the 
rebuttal  of  it.  Mr.  Justice  Bronson's  view  appears  to  have  been  a  little 
different;  believing  that  these  two  clauses  of  the  statute,  if  they  were  in 
pari  materia,  could  not  stand  together ;  and  knowing  that  there  is  one  prin- 
ciple in  the  Jaw  which  deduces  legal  fraud,  consisting  in  a  secret  trust,  from 
retention  of  possession,  aiid  another  by  which  an  actual  fraudulent  intent  is 
made  to  avoid  all  sales  ;  he  considered,  that  if  the  latter  clause  called  for 
the  intervention  of  the  jury,  then  the  two  clauses  must  be  treated  as  refer- 
ring to  these  two  principles  respectively  ;  and  that  the  second  of  them  musi 
be  looked  upon  as  providing  how  far  the  non-delivery  of  posession  shall  be 
evidence  of  actual  fraud,  when  actual  fraud  is  the  point-to  be  proved.  Both 
of  these  views  led  to  the  same  practical  result;  and  the  rule  was  brought 
back  to  the  form  in  which  it  had  been  laid  down  by  Chief  J.  Kent  :  Ran- 
dall V.  Cook,  17  Wendell,  54  ;  Wood  and  others  v.  Lowry  &  Douglas,  id. 
492.  As  before,  the  law,  only.  Was  to  judge  of  the  cases  which  did  not 
come  within  the  conclusion  of  law  ;  and  if  the  jury  negatived  a  fraudulent 
intention,  when  the  legal  objection  remained  unsatisfied,  a  new  trial  was  to  be 
granted  ;  Stevens  &  Munn  v.  Fisher  &  Whitmore,  19  id.  181.  It  was  fur- 
ther held  an  insufficient  excuse  in  law,  that  the  retention  was  for  the  mort- 
gagor's accommodation;  Gardner  v.  Adams,  12  id.  297;  or  that  it  was  for 
carrying  on  his  vocation,  Doane  v.  Eddy,  16  id.  523  ;  or  was  to  enable  the 
mortgagor  better  to  pay  the  mortgagee  his  debt;  Beckman  v.  Bond,  19  id. 
444 ;  the  excuse  should  be  in  the  nature  of  an  impracticability,  as,  in  case 
of  ponderous  articles  or  growing  crops,  Randall  v.  Cook.  The  principle  of 
the  Supreme  Court  was  held  by  the  Chancellor  in  Butler  v.  Stoddart  and 
others,  7  Paige,.  163  ;  and  the  case  being  brought  before  the  Court  of  Errors, 
that  body  was  equally  divided,  upon  the  question  whether  the  inference  was 
one  of  law  for  the  court,  or  of  intention  for  the  jury  ;  Stoddart,  &c.  v.  Butler, 
&c.,  20  Wendell,  507.  The  subject  was  again  brought  into  the  Court  of 
Errors  in  Smith  &,  Hoe  v.  Acker,  23  id.  653  ;  and  it  was  then  decided  by  a 
large  majority,  that  the  question  of  fraud  was  in  all  cases  one  of  fact  for  the 
jury,  and  that  the  clause  making  it  matter  of  intention,  applied  to  all  cases. 
In  Butler  &  Barker  v.  Van  Wyck,  1  Hill's  N.  Y.  438,  this  was  reluctantly 
submitted  to  by  a  majority  of  the  Supreme  Court,  and  the  efl'ect  was  justly 
considered  to  be,  the  abolition  of  the  principle  in  Twyne's  case,  and  the 
leaving  of  all  cases  to  the  proof  of  such  "actual  mental  fraud"  as  would 
vitiate  any  transaction  whatever;  but  one  of  the  judges  openly  rebelled. 
In  Prentiss  v.  Slack  and  another,  id.  467,  the  court  resigned  the  wh^le  mat- 
ter into  the  hands  of  the  jury.  In  Cole  &  Thurman  v.  White,  26  Wen- 
dell, 511,  the  Court  of  Errors  confirmed  their  decision,  that  all  legal  evi- 
dence tending  to  satisfy  the  jury  that  there  was  no  intent  to  defraud  credi- 
tors or  purchasers,  must  be  received  and  submitted  to  the  jury.  In  the 
recent  case  of  Hanford  v.  Artcher,  the  judge  below  had  told  the  jury,  that 
the  vendee,  not  having  taken  possession,  must  show  some  good  reason  sat- 


twyne'scase.  63 

isfactory  to  the  jury,  why  the  possession  was  not  changed  ;  and  a  majority 
of  the  Court  of  Errors,  4  Hill's  N.  Y.  273,  reversed  the  judgment  for  this 
error,  and  decided  that  the  only  question  for  the  jury  was  that  of  fair  or 
fraudulent  intention  ;  but  Chancellor  Walworth  dissented,  and  six  others, 
including  Senators  Paige  and  Varian,  voted  with  him.  But  when  the 
Supreme  Court  thus  seemed  finally  defeated,  it  suddenly  gained  a  complete 
victory,  by  suggesting  that  these  decisions  of  the  Court  of  Errors  did  not 
affect  the  right  of  the  courts  to  grant  new  trials,  and  therefore  that  although 
it  was  necessary  in  all  cases  that  the  evidence  should  be  submitted  to  the 
jury,  who  alone  are  to  decide  upon  the  question  of  fraud,  yet  that.it  is  the, 
right  and  duty  of  the  court  to  grant  a  new  trial  whenever  the  jury  fall  into 
an  error  on  the  subject  of  fraud,  and  come  to  a  conclusion  against  the 
weight  of  evidence;  fraud,  said  Bronson,  C.  J.,  must  always  be  left  as  a 
question  of  fact  to  the  jurj^  but  "if  the  jury  come  to  a  wrong  conclusion, 
we  must,  as  we  do  in  other  cases,  grant  a  new  trial;"  Vance  v,  Phillips,  6 
Hill's,  N.  Y.  433.  In  1833,  a  law  Avas  passed  requiring  mortgages  to  be 
filed,  where  immediate  possession  was  not  delivered,  or  else  to  be  absolutely 
void  against  creditors  and  purchasers;  2  R.  S.  136;  Seymour  v.  Lewis, 
L9  Wendell,  515;  this  act  does  not  cause  the  filing  of  the  instrument  to 
give  the  mortgage  validity  Avhere  possession  is  retained;  it  superadds 
another  and  an  absolute  cause  of  invalidity.  Wood  and  others  v.  Lowry  & 
Douglas,  17  Wendell,  492 ;  Smith  &  Hoe  v.  Acker,  23  id.  653.  658. 

In  Pennsylvania,  the  rule  is  carried  to  a  greater  extent  than  in  any 
other  state  ;  and  the  broad  principle  appears  to  be  established,  that  to  trans- 
fer a  title  or  to  create  a  lien,  by  the  act  of  the  owner,  that  shall  be  valid 
against  creditors  or  bona  fide  purchasers,  delivery  of  possession  is  indispen- 
sable. The  leading  case  is  Clow  and  another  v.  Woods,  5  Sergeant  & 
Rawle,  275.  Previously  to  that  decision,  the  principle  was  not  carried  so 
far.  In  Wilt  v.  Franklin,  1  Binney,  502,  521,  and  in  Dawes  v.  Cope,  4  id. 
258.  265,  TiLGHMAN,  C.  J.,  had  adopted  the  rule  of  Edwards  v.  Harben, 
and  Hamilton  v.  Russel,  and  said  that  though  an  absolute  immediate  assign- 
ment must  be  accompanied  by  a  delivery  of  possession,  yet  that  if  the  con- 
veyance was  conditional,  or  to  take  effect  at  a  future  time,  the  retaining  of 
possession  according  to  the  intent  of  the  deed,  would  not  be  fraudulent. 
The  latter  of  these  cases  was  in  1811;  the  next  year,  Sturtevant  and  Keep 
V.  Ballard  was  decided,  in  which  the  application  of  the  principle  was 
enlarged  upon  considerations  of  public  policy,  and  extended  to  mortgages ; 
and  that  case  has  led  the  later  Pennsylvania  decisions.  In  Clow  and 
another  v.  Woods,  (1819),  the  case  of  a  mortgage,  the  whole  subject  was 
examined,  and  it  was  decided  that  there  is  no  diff(3rence,  in  respect  to  this 
rule,  between  absolute  sales,  and  contingent  sales  or  mortgages,  and  that,  as 
to  both,  Tetention  of  possession  beyond  what  is  necessary  or  unavoidable,  is 
a  fraud  in  law  :  and  Gibson,  J.,  said  that  public  policy  should  induce  a  con- 
struction of  the  statute  so  comprehensive  as  to  take  in  all  cases,  except  those 
in  which,  from  the  very  nature  of  the  transaction,  possession  either  could  not 
be  delivered  at  all,  or  not  without  defeating  wholly  or  in  a  great  degree,  the 
purpose  of  the  conveyance,  and  that  purpose  is  such  as  the  law  approves  of 
and  protects  ;  such  would  be  the  case  of  a  marriage-settlement.  This  rule 
has  never  since  been  deviated  from.  'In  Streeper  v.  Eckart  and  another,  2 
Wharton,  302,  Kennedy,  J.,  citing  the  decisions,  says,  "If  there  be  any 


64  smith'sleadingcases. 

principle  established  by  these  cases,  it  is,  that  a  transfer  of  personal. pro- 
perly, unaccompanied  by  a  corresponding  transmutation  of  possession,  is 
void  as  against  creditors."  See  dictum  in  Dorneck  and  others  v.  Reiche'n- 
back,  10  Sergeant  &  Rawle,  84.  90,  that  it  is  a'matter  for  the  court  to  pro- 
nounce on,  not  the  jury,  approved  in  Carpenter  v.  Mayer,  5  Watts,  483, 
and  Young  v.  M'Clure,  2  Watts  &  Sergeant,  147  ;  see  remarks  of  Ctibson, 
C.  J.,  on  legal  fraud  in  Avery  v.  Street,  6  Watts,  247.  That  mortgages 
are  within  the  rule  is  again  expressly  decided  in  Welsh  v.  Bekey,  Ex'or  of 
Hayden,  1  Penrose  &  Watts,  57  ;  and  it  is  now  established  in  Pennsyl- 
vania, as  a  general  principle  of  law,  that  by  no  device  whatever,  whether  of 
sale  and  agreement  of  resale,  or  by  the  title  at  the  time  of  the  purchase 
being  vested  in  one  who  is  a  surety  for  the  purchaser  who  takes  possession, 
can  a  lien  be  created  on  personal  property  separate  from  the  possession  of 
it.  Jenkins  v,  Eichelberger,  4  Watts,  121  ;  Trovillo  v.  Shingles,  10  id. 
438;  see  M'CuUough  v.  Porter,  4  Watts  &  Sergeant,  177.  The  delivery 
must  be  actual  and  not  merely  symbolical,  where  actual  delivery  is  practi- 
cable, and  if  it  be  not  practicable,  the  parties  should  leave  nothing  undone 
to  secure  the  public  from  deception  ;  in  such  a  case,  delivery  of  the  muni- 
ments of  title,  or  of  the  key  of  a  store-room,  would  be  sufficient;  Cunning-- 
ham  V.  Neville,  10  Sergeant  &  Rawle,  201  :  In  Babb  v.  Clemson,  id.  419. 
428,  it  is  said  there  must  be  a  bona  fide,  substantial  change  of  possession, 
and.  that  concurrent  possession  is  fraudulent :  In  Hoffher  v.  Clark,  5  Whar- 
ton, 545.  550,  it  is  said  there  must  be  an  actual  transfer  of  the  possession,  so 
far  as  the  nature  and  condition  of  the  property  will  admit  of  it,  and. the  cir- 
cumstance of  the  buyer  and  seller,  brothers,  living  in  the  same  house,  'fur- 
nished no  ground  for  dispensing  with  such  actual  change  of  the  possession  ■ 
as  will  render  it  distinct  and  visible,  so  that  it  may  become  notorious  :'  la 
Hoofsmith  and  others  v.  Cope,  6  id.  53,  the  court  below  ruled,  that  there 
must  be  an  accompanying,  actual,  visible,  and  notorious  possession,  and 
this  was  approved  of  above:  see   Herron  v.  Fry,   2  Penrose   &   Watts, 

263,  the  case  of  a  growing  crop As  to  the  time  when  the  possession 

must  be  delivered,  it  is  decided  in  Carpenter  v.  Mayer,  5  Watts,  483,  that 
it  is  not  enough  that  the  possession  has  past  before  the  execution  is  levied  ; 
it  must  "  accompany  the  transfer  or  follow  it  within  a  reasonable  time  there- 
after, that  is,  as  soon  as  the  nature  of  the  property  and  the  circumstances 
attending  it  will  admit;"  but  the  same  court  in  Hoofsmith  and  others  v. 
Cope  appears  to  hav^e  been  decided  differently,  and  the  decisions  in  Virgi- 
nia, Vermont  and  Massachusetts,  are  different,  and  the  rule  in  respect  to 
the  analogous  case  of  executions  is  laid  down  differently  in  Berry  v.  Smith, 
3  Washington  C.  C.  60,  and  Eberle  v.  Mayer,  1  Rawle,  366,  approved  in 
Hentz  and  another  v.  Hanman,  5  Wharton,  150  ;  and  it  seems  clearly  that 
these  latter  cases  are  right  ;  that  is,  that  the  legal  fraud  has  ceased,  though 
if  the  transaction  were  found  by  the  jury  to  be  collusive  it  would  be  void  ; 
the  use  or  trust  in  which  the  legal  fraud  consisted  is  at  an  end  when  the 
possession  is  delivered.  In  Wilt  v.  Franklin,  in  case  of  an  assignment  to 
a  trustee,  absent  at  the  time,  it  was  held  that  a  delay  from  Saturday  night 
till  Monday  morning  was  not  fraudulent,  and  that  the  execution  coming  on 
Monday  and  rendering  a  delivery  impossible  ;  excused  it  afterwards. — The 
vendee's  possession  must  continue,  for  if  the  property  goes  back  after  a  brief 
interval,  the  transaction  is  colourable  and  fraudulent ;   Streeper  v.  Eckart 


T  W  VNE  '  S    C  ASB.  ^5 

and  another;  Young  v.  M'CIurc  ;  Cunningham  v.  Neville  ;  M'Bride  v. 
M'Clelland,  G  Watts  &  Sergeant,  94  ;  dictum  in  Cameron  and  another  v. 
Montgomery,  13  Sergeant  &  Rawle,  128.  131. — In  case  of  retention  of 
possession,"  the  transfer  is  fraudulent  and  void  against  subsequent  bona 
fide  purchasers  as  well  as  creditors  ;  Shaw  and  another  v.  Levy,  17  id.  99  ; 
Dawes  v.  Cope. — The  exceptions  to  the  application  of  this  legal  presump- 
tion of  fraud,  are  well  settled.  Upon  an  assignment,  sale,  or  mortgage  of 
goods  or  a  ship  at  sea,  delivery  of  the  muniments  of  title  is  sufficient,  if 
possession  be  taken  within  a  reasonable  time  after  the  arrival  of  the  pro- 
perty ;  Morgan's  Ex'rs  v.  Biddlc,  1  Yeates,  3.  After  a  sale  by  a  sheriff 
or  constable  upon  execution  or  distress,  the  property  may  be  left  in  posses- 
sion of  the  former  owner  ;'  because  the  sale  being  the  act  of  the  law  is 
presumed  not  to  be  fraudulent,  and  because  of  the  notoriety  of  the  transfer  ; 
Water's.  Ex'ors  v.  McClellan  et  al.  4  Dallas,  208  ;  Myers  v.  Harvey,  2 
Penrose  &  Watts,  481  ;  .approved  in  Streeper  v.  Eckart  and  another,  upon 
the  same  reason  ;  in  Bellas  v.  M>Carly,  10  Watts,  13.  44,  the  reason  given 
is  that  every  body  is  bound  t<)  take  notice  of  judicial  sales  and  transfers.  In 
Wager  v.  Miller,  4  Sergeant  &  Rawle,  117,  it  was  decided  that  possession 
by  an  insolvent  with  consent  of  his  assignees  is  good  against  a  then-exist- 
ing creditor  who  had  made  himself  an  immediate  party  to  the  insolvent 
proceedings,  because  it  is  by  consent  of  one  who  is  the  creditor's  trustee 
under  a  proceeding  which  he  has  taken  part  in,  but  it  was  said  that  it 
would  have  rendered  the  assignment  void  against  subsequent  creditors  : 
however,  it  is  pretty  clear  upon  the  later  decisions  that  insolvents'  assign- 
ments are  not  within  the  legal  presumption  of  fraud,  at  all ;  they  are 
the  act  of  the  law  and  not  of  the  party,  and  all  the  world  is  bound  to  take 
notice  of  them;  Wickersham  v.  Nicholson,  14  Sergeant  &  Rawle,  118; 
Ruby  V.  Glenn,  5  Watts,  77  ;  approved  in  Bellas  v.  M'Carty,  10  Watts, 
13.  44  ;  and  therefore  the  same  reasons  exist  for  taking  them  out  of  the 
rule  as  have  been  given  in  the  case  of  sheriffs'  sales.  Before  the  Act  of 
14  June,  1836,  relating  to  assignments,  it  was  said  that  voluntary  assign- 
ments for  the  benefit  of  creditors  were  within  the  rule  ;  Cunningham  v. 
Neville,  10  Sergeant  &  Rawle,  201  ;  Ilower  v.  Gcesaman  and  others,  17 
Id.  251 ;  but  under  that  Act,  an  assignment  duly  recorded  stands  upon  the 
footing  of  a  transfer  by  law,  because,  as  the  Act  gives  the  creditors  a  right- 
to  have  the  trust  that  is  expressed  in  the  deed  executed  for  their  benefit 
by  the  court,  the  whole  trust  becomes  vested  in  them  in  equity,  under  the 
immediate  administration  of  the  court,  and  therefore  an  assignment  recorded 
is  Jn  effect  a  transfer  to  the  creditors  by  the  act  of  law,  and  the  recording 
gives  the  transaction  all  the  publicity  of  a  judicial  proceeding;  assignments 
recorded  are  therefore  not  within  the  rule  as  to  possession,  neither  during 
the  thirty  days  allowed  for  recording,  nor  after  record  ;  Mitchell  v.  Willock, 
2  Watts  and  Sergeant,  253  ;  Fitler  v.  Maiiland,  5  Id.  307  ;  Dallam  v.  Filler, 
6  Id.  323.  These  seem  to  be  the  only  exceptions  recognized  in  the  Penn- 
sylvania cases.  The  case  of  the  sale  of  an  unfinished  article,  not  to  be 
delivered  till  finished,  which  had  been  left  an  exception  in  Clow  and  another 
v.  Woods,  is  declared  in  Pritchett  and  another  v.  Jones,  4  Rawle,  260,  not 
to  be  one  :  and  the  case  of  Bucknel  v.  Royston,  also  recognized  as  an  excep- 
tion in  Clow  and  another  v.  Woods,  appears  to  be  over-ruled  by  Hoofsmilh 
and  others  v.  Cope.  The  better  opinion  appears  to  be  that  conditional  sales 
Vol.  l — 5 


66  smith'sleadinocases. 

are  not  affected  by  this  presumption  of  fraud ;  for  though  it  was  held  in 
Martin  v.  Malhiot,  14  Sergeant  &  Rawle,  214,  that  delivery  of  possession 
in  such  cases  would  devest  the  vendor's  property  in  relation  to  the  vendee's 
creditors,  and  there  is  in  Rose  et  al.  v.  Story,  I  Barr,  191.  196,  a  dictum  in 
approval  of  this  decision,  yet  it  seems  to  have  been  over-ruled  by  M3^ers  v. 
Harvey,  2  Penrose  &  Watts,  478,  where  it  is  said  that  such  a  transaction 
consists  of  two  parts,  a  bailment,  which  is  not  fraudulent,  and  a  superadded 
executory  agreement  to  sell,  which  does  not  transfer  the  title,  and  that  the 
title  is  in  the  conditional  vendor  as  in  favour  of  his  own  creditors  ;  and  again 
to  be  effectively  over-ruled  in  Lehigh  Company  v.  Field,  8  Watts  &  Ser- 
geant, 232.  241,  notwithstanding  the  subtle  distinction  suggested  by  the 
Chief  Justice  between  Martin  v.  Mathiot  and  the  case  before  him.  In  Welsh 
V.  Bekey,  Ex'or  of  Hayden,  it  was  said  that  the  rule  applies  to  choses  in 
action;  but  in  United  States  v.  Vaughan,  3  Binncy,  394,  and  Common- 
wealth v.  Watmough,  G  Wharton,  117,  it  is  decided  that  an  assignment  of 
Stock  in  a  bank  with  a  delivery  of  the  certificate  and  power  of  transfer,  is 
valid  against  an  execution,  though  the  stock  be  not  transferred  on  the  books 
of  the  bank.  Upon  the  whole,  in  Pennsylvania,  the  distinction  established 
appears  to  be  between  conveyances  by  the  act  of  the  oumer,  and  by  the  act 
of  the  law.  The  principle  upon  which  all  the  cases  may  stand,  is  this: 
that  every  transfer  of  the  title  by  the  act  of  the  owner,  whether  to  the 
transferee  as  purchaser,  or  to  him  for  his  security  as  a  creditor,  or  as  a 
trustee  for  creditors,  where  the  owner  is  allowed  to  keep  possession,  and 
use  or  traffic  with  the  goods,  longer  than  is  reasonably  necessary  under  the 
circumstances,  is  fraudulent  under  the  statutes  of  Elizabeth,  and  void, 
because  it  is  a  transfer  which  deprives  his  creditors  of  all  benefit  from  his 
property,  but  does  not  so  deprive  himself:  but  that  where  the  transfer  is  an 
operation  of  the  law,  being  by  sheriff's  sale,  insolvent's  assignment,  or  vol- 
untary assignment  recorded,  it  is,  prima  facie,  fair  and  valid,  for  the  whole 
interest  and  right  and  control  have  certainly  past,  clean  and  absolute,  by  the 
command  of  the  law ;  and  though  possession  remain  with  the  debtor,  the 
presumption  of  a  trust  reserved  in  the  conveyance  cannot  arise. 

In  Connecticut  ;  in  Patten  v.  Smith,  5  Connecticut,  196,  the  rule  of 
Hamilton  v.  Russel,  and  that  of  Sturtevant  v.  Ballard,  are  considered  to  be 
the  same:  the  meaning  of  " possession  accompanying  and  following  the 
deed"  is,  that  "  the  possession  must  be  found  where  it  ought  to  be,  consi- 
dering the  subject  in  its  true  light ;"  and  as  possession  ought  to  be  delivered 
in  case  of  mortgages  as  much  as  absolute  sales,  the  rule  of  Sturtevant  v. 
Ballard  is  settled  in  that  case  with  increased  precision  ;  "  a  voluntary  sale, 
or  mortgage,  of  chattels,  with  an  agreement  in  or  out  of  the  deed,  that  the 
vendor  may  keep  possession,  is,  except  in  special  cases,  and  for  special 
reasons,  to  be  shown  to,  and  approved  by  the  court,  fraudulent  and  void 
against  creditors  and  bona  fid-e  purchasers:"  and  in  this  case,  a  mortgage 
with  possession  retained  was  adjudged  void  against  a  subsequent  vendee. 
In  Swift  V.  Thompson,  9  id.  63,  the  above  rule  is  rc-affirmed ;  and  it  is 
said,  "This  has  been  the  law  of  Connecticut  for  the  last  forty  years,  if  not 
from  the  beginning.  It  is  not  according  to  the  course  of  the  court  to  call 
this  a  fraud  per  se,  and  to  direct  the  jury  to  find  the  sale  void,  but  the 
question  is  submitted  to  the  jury  as  a  question  of  fact,  Avith  instruction  that 
if  they  find  none  of  the  established  exceptions,  they  will  find  the  transac- 


twyne'scase.  67 

tion  fraudulent."  The  possession  in  the  transferee  must  be  actual  and  bona 
fide  ;  5  id.  196;  if  practicable,  immediate  possession  must  be  taken;  if  not 
practicable,  it  must  be  done  within  a  reasonable  time ;  due  diligence  must 
be  used  ;  on  an  assignment  to  a  trustee  for  creditors,  the  trustee  is  allowed 
a  reasonable  time  to  give  notice  to  the  bailiff  or  take  possession  ;  and  whe- 
ther this  diligence  was  used,  or  there  was  such  remissness  as  would  infeF 
fraud,  is  for  the  jury.  Ingraham  v.  Wheeler,  6  id.  277.  Under  this  rule, 
if  a  ship  at  sea  be  sold  or  mortgaged,  possession  must  be  taken  "  as  soon  as 
may  be"  on  her  return  ;  Starr  v.  Knox,  2  id.  215  ;  5  id.  200 ;  or  "  within 
a  reasonable  time,"  Ingraham  v.  Wheeler.  The  rule  of  Patten  v.  Smith 
applies  equally  to  choses  in  action  ;  so  that  if  the  assignor  retain  an  assigned 
bond,  no  right  passes,  and  he  may  assign  it  .to  another;  Smith  v.  Patten, 
citing  1  Atk.  171.  The  usual  exception  of  marriage-settlement,  &c.,  are 
recognized  in  Swift  v.  Thompson  :  and  property  exempt  from  execution  is 
another  exception  ;  Patten  v.  Smith  and  Shepherd,  4  id.  130.  In  Mills  v. 
Camp  and  others,  14  id.  219,  Carter  and  another  v.  Watkins,  id.  241,  and 
Osborne  v.  Tuller  and  another,  id.  530,  in  which  last,  all  the  cases  are  re- 
viewed, the  old  principle  is  maintained,  and  the  result  of  these  decisions 
appears  to  be,  that  the  rule  is  one  of  policy,  and  not  of  intention  ;  that  it  is  not 
enough  that  the  jury  find  that  the  sale  was  bona  fide  and  for  full  considera- 
tion, though  evidence  of  that  is  proper  to  be  submitted  to  the  jury  to  repel 
actual  fraud ;  there  must  be  shown  some  reason  for  the  retention,  legally 
sufficient  and  satisfactory  ;  the  presumption  of  fraud  is  a  presumption  of 
law,  and  the  law  judges  of  the  cases  in  which  it  does  not  arise,  and  the  jury 
are  to  be  instructed  by  the  court  as  to  the  sufficiency  of  the  facts  and  rea- 
sons alleged  to  justify  the  retention.  In  the  last  case  the  court  held  that 
assignments  for  creditors  under  the  act  of  that  state  of  1828,  were  not  within 
the  general  principle,  unless  the  assignee  allowed  the  assignor  to  treat  the 
assignment  as  void  by  suffermg  him  to  hold  himself  out  to  the  public  as 
being  the  real  owner  of  the  property  :  and  the  reason  of  this  exception  ap- 
pears to  be  that  the  proceedings  under  that  act  are  of  a  legal  kind,  and  the 
transfer  is  in  a  great  degree  a  judicial  proceeding. 

In  Vermont,  the  principle  of  Sturtevant  &  Keep  v.  Ballard  is  received, 
and  maintained  with  great  strictness.  On  a  sale  of  chattels,  there  must  be 
a  delivery,  and  a  substantial,  visible  change  of  possession,  or  the  sale  is  frau- 
dulent by  construction  of  law,  and  void  as  to  creditors  ;  Durkee  v.  Mahoney, 
1  Aiken,  116;  Mott  v.  M'Neil,  id."  162  ;  Weeks  v.  Wead,  2  id.  64,  where 
the  principle  is  examined  at  length,  and  the  rule  ably  vindicated  :  In  later 
cases  it  is  repeatedly  declared,  that  the  invalidity  of  the  sale  does  not  depend 
on  any  fraudulent  intention — that  "  no  matter  how  honest  the  conveyance 
may  be  in  point  of  fact,  the  law  from  principles  of  policy,  pronounces  it  frau- 
dulent per  se,and  void" — that,  this  rule  has  ever  "  been  most  undeviatingly 
adhered  to" — and,  that,  "experience  shows  it  to  be  a  doctrine  founded  in 
the  soundest  policy,  from  which  there  is  no  disposition  to  recede  ;"  Fuller,  Jr. 
V.  Sears  et  al.  5  Vermont,  527;  Gales  v.  Gaines,  10  id.  346;  Foster  v, 
M'Gregor  &  Stiles,  11  id.  595  ;  Lynde  &  Morse  v.  Melvin,  id.  683  ;  Wilson 
V.  Hooper,  12  id.  653  ;  llockvvood  v.  CoUamer  et  al.  14  id.  141.  The  pos- 
session of  the  vendee  must  be  exclusive  ;  at  least,  the  sale  is  fraudulent,  if 
the  vendor  retain  such  joint  control  as  is  consistent  with  the  joint  ownership  ; 
Kendall  V.  Samson,  12  id.  515;  Allen  v.  Edgerton,  3  id.  442:  and  the 


68  SMITll'sLEADINOCASES. 

court  after  defining  to  the  jury  what  constitutes  possession,  are  to  leave  it 
to  them  to  determine  whether  the  vendor  was  in  possession,  or  in  possession 
jointly  with  the  vendee  ;  Hall  v.  Parsons,  15  Vermont,  358.  The  posses- 
sion must  also  be  continuing;  and  if  the  vendee,  or  his  agent  even  without 
his  knowledge,  suffer  the  thing  to  go  back  t6  the  vendor,  the  sale  is  ren- 
dered fraudulent;  Morris  et  al.  v.  Hyde,  8  id.  352:  but  if  the  thing  be 
bailed  at  the  time  of  the  sale,  and  the  bailee  let  it  return,  it  will  not  vitiate 
the  sale,  for  the  bailee  then  acts  as  the  servant  of  the  vendor  ;  Lynde  &■ 
Morse  v.  Melvin  :  In  the  late  case  of  Dewey  v.  Thrall  et  al.  13  id.  281,  the 
.rule  was  said  to  be,  that  the  possession  of  the  vendee  must  be  so  visible, 
notorious,  and  continued,  that  the  creditors  may  be  presumed  to  have  notice 
of  it;  and  in  Farnsworth  v.  Shopard,  6  id.  521,  seven  months'  continuance 
was  held  to  be  sufficient.  The  general  rule  of  fraud  in  law  does  not  apply, 
if  the  delivery  be  perfected  at  any  time  before  an  execution  comes  ;  yet  even 
non-delivery  would  be  competent  evidence,  from  which  the  jury  might  infer 
a  fraudulent  intent  in  fact;  Kendall  v.  Samson.  The  rule  does  not  appl}', 
if  at  the  time  of  the  sale,  the  goods  are  in  possession  of  a  bailee  ;  Barney  v. 
Brown,  2  id.  371 ;  Spaulding  v.  Austin,  id.  555  ;  Harding  v.  .Tanes,  4  id. 
462  ;  Lynde  &  Morse  v.  Melvin  ;  but  then  notice  must  be  give"n  to  the 
bailee,  Moore  v.  Kellj^  5  id.  34,  by  the  purchaser,  or  by  both  parties  ;  Judd 
&  Harris  v.  Langdon,  id.  231,  Pierce  v.  Chipman,  8  id.  334 ;  and  the  rea- 
son of  the  exception  is,  that  the  possession  being  with  a  third  person  is  notice 
to  creditors  and  others  that  the  title  may  have  been  parted  with  ;  they  are 
put  upon  inquir)',  and  if  they  will  ask  the  bailee,  he  can  inform  them  accu- 
rately : — see  to  the  same  effect,  Merritt  v.  Miller,  13  id.  416;  Potter  v. 
Washburn,  id.  558  ;  and  see  Rockwood  v.  Collamer  et  al.  14  Vermont,  141. 
The  rule  also  does  not  apply  if  the  property  is  such  as  is  exempt  from  exe- 
cution ;  Foster  v.  M'Gregor  &  Stiles :  nor  does  it  apply  to  a  sale  by  the 
sheriff^  on  execution,  partly  on  the  ground  of  notoriety,  and  partly  because 
the  sale  is  the  act  of  the  law;  Boardman  v.  Keeler  et  al.  1  Aiken,  158,  2 
id.  70  ;  Bates  v.  Carter,  5  Vermont,  602  ;  Gates  v.  Gaines;  Cilley  v.  Cush- 
man,  12  id.  494  ;  but  it  must  be  a  regular  compulsory  sale  according  to  the 
course  of  legal  process ;  Batchelder  v.  Carter,  2  id.  168  ;-and  if  the  sale, 
though  made  publicly  by  the  sheriff^  be  not  legally  under  the  process  in  his 
hands,  but  by  consent  of  parties,  it  will  not  be  within  the  exception,  because 
it  is  not  a  transfer  of  the  title  by  operation  of  law  ;  Kelly  v.  Hart,  14  id.  50. 
With  regard  to  the  principle  of  possession  in  accordance  with  the  deed,  and 
the  consequent  exception  of  contingent  sales,  which  is  recognized  in  Weeks 
V.  Wead,  (a.  d.  1826,)  it  is  there  held  to  mean,  that  the  possession  must  be 
in  accordance  with  the  limitation  of  interest  made  by  the  deed,  as  in  the 
case  of  a  settlement  of  furniture  on  marriage,  and  that  the  mere  insertion  of 
an  agreement  to  the  efl^ect  that  possession  should  be  kept,  would  not  do  ; 
♦«  an  assignment,"  it  is  said  in  that  case,  "  of  goods,  with  condition  that  pos- 
session shall  not  be  taken  till  forfeited,  or  the  insertion  of  a  clause  in  the 
bill  of  sale,  when  the  sale  is  otherwise  absolute,  that  the  vendor  shall  remain 
in  possession,  will  not  make  his  possession  consistent  with  the  deed,  or  lake 
the  case  out  of  the  rule  ;" — "the  form  of  the  conversance  can  make  no  dif- 
ference, if  from  the  nature  of  the  transaction,  the  sale  is  absolute,  and  pos- 
session can  accompany  it ; — indeed,  the  rule  appears  to  apply  to  all  cases, 
except  where  the  purpose  of  the  conveyance  and  the  nature  of  the  transac- 


T  W  Y  N  E     S    C  A  S  E.  69 

tion  entitle  or  require  the  vendor  to  continue  in  possession,  and  the  law,  con- 
sidering it  necessary  and  justifiable,approvesand  permits  it;"  and  the  court 
give  as  instances,  Maggoit  v.  Mills,  Kyd  v.  Rawlinson,  and  Bucknall  v. 
Royston.  This  is  in  effect  the  rule  of  Sturtevant  &  Keep  v.  Ballard,  and 
Clow  and  another  v.  Woods.  According  to  the  dicta  of  Weeks  v.  Wead, 
mortgages  are  within  the  rule  ;  and  in  the  case  of  a  sale  and  mortgage  back 
to  secure  the  purchase-money  they  were  determined  to  be  so,  in  Tobias  v. 
Francis,  3  Vermont,  425,  and  Woodward  v.  Gates  &  Cheney,  9  id.  358  ; 
though  the  case  of  common  mortgages  was  left  undecided  in  GifTord  v.  Ford, 

5  id.  532.  It  may  be  remarked  as  an  illustration  of  the  extreme  nicety  of 
the  considerations  belonging  to  this  subject,  that  in  Kentucky,  where  pre- 
cisely the  same  explanation  is  given  of  the  meaning  of  "consistency  with 
the  deed,"  as  in  Weeks  v.  Wead,  a  different  conclusion  is  reached  as  to 
mortgages  being 'embraced  by  it :  the  truth  is,  that  the  notion  of  a  mortgage 
of  chattels  at  common  law,  is  very  uncertain.  In  Vermont,  as  to  condi- 
tional sales,  (viz.  where  the  possession  is  delivered,  but  the  property  does 
not  pass  till  payment,)  it  is  decided  in  Bigelow  v.  Huntley,  8  Vermont,  151, 
that  the  goods  are  not  rendered  by  the  delivery  liable  to  the  vendee's  credi- 
tors, though  fraudulent  representations  as  to  the  title  would  render  them  so. 

(3).  The  other  courts  of  the  Union  seem  to  have  adopted  the  practice  of 
referring  the  question  of  fraud  to  the  jury. 

In  Massachusetts  and  Maine,  the  principle  appears  to  be,  that  retention 
of  possession  upon  an  absolute  conveyance  of  chattels,  is  sufficient  evidence 
of  fraud:  but  retention  consistently  with  the  nature,  operation  and  purpose 
of  the  conveyance,  is  no  evidence  of  fraud:  and  that  it  is  in  no  case  fraud, 
or  conclusive  evidence  of  fraud.  Brooks  v.  Powers,  15  Massachusetts,  244  ; 
Fletcher  v.  Willard,  14  Pickerings  464  ;  Briggs  v.  Parkman,  2  Metcalf, 
258  ;  Haskell  et  all.  v.  Greenly,  3  Greenleaf,  425  ;  Reed  v.  Jewett,  6  id. 

06  ;  Holbrook  v.  Baker,  id.  309.  In  absolute  sales,  possession  is  evidence, 
and  generally  very  strong  evidence,  of  fraud  for  the  jury  ;  Brooks  v.  Powers  ; 
Ulmer  v.  Hills,  8  Greenleaf,  326 ;  a  secret  trust,  or  agreement  upon  a  bill 
of  sale  of  chattels,  absolute  on  its  face,  is  still  but  evidence  of  fraud  ;  N.  E. 
Marine  Ins.  Com.  v.  Chandler  and  Trustee,  16  Massachusetts,  275.  279; 
Oriental  Bank  v.  Haskins,  3  Metcalf,  332.  337;  and  secrecy  in  the  sale 
does  not  add  to  the  legal  presumption  of  fraud;  Glover  et  al.  v,  Austin,  0 
Pickering,  209.  221  ;  and  even  an  express  agreement  to  keep  the  sale  secret, 
is  not,  per  se,  fraudulent,  but  "  mere  matter  of  evidence,"  "strong  perhaps  ;" 
Gould  V.  Ward,  4  id.  104 ;  5  id.  291,  S.  C. :  and  this  evidence  may,  in  all 
cases,  be  rebutted  by  showing  the  transaction  to  be  bona  fide,  and  on  valua- 
ble consideration ;  and  the  question  of  fraud  is  to  be  decided  by  the  jury 
upon  the  whole  evidence;  Homes  et  al.  v.  Crane,  2  id.  607.  If  possession 
is  assumed  before  an  execution  is  levied,  the  sale  is  valid;  Bartlnt  v.  Wil- 
liams, 1  id.  288  ;  Shumway  etal.  v.  Rutter,  8  id.  443,  447.  Where,  at  the 
time  of  the  sale,  it  is  stipulated  by  fair  and  open  agreement,  that  the  vendor 
shall  retain  possession  for  a  given  time  ;  (Wheeler  v.  Train,  3  id.  255  ;)  and 
in  case  of  mortgages,  and  other  contingent  conveyances,  for  the  security  of 
the  grantee;  and,  generally,  where  the  retention  is  consistent  with  "the 
terms  of  the  contract,  the  intention  of  the  parties,  and  the  nature  of  the  tran- 
saction," non-delivery  of  possession  is  sufficiently  explained,  and  is  no  longer 
evidence  of  fraud  ;  Badlam  v.  Turner,  1  id.  389  ;  Homes  et  al.  v.  Crane; 


70  smith'sleadingcase3. 

Glover  et  al.  v.  Austin  ;  Adams  v.  Wheeler,  10  id.  199  ;  Lunt  v.  Whitaker, 
1  Fairfield,  310;  Cutter  v.  Copcland,  6  Shepley,  127  ;  Lane  v.  Borland,  2 
id.  77.  However,  in  the  recent  case  of  Robbins  v.  Parker,  3  Metcalf,  117, 
the  principle  of  Summerville  v.  Horton,  4  Yerger,  541,  is  pdopted,  and  it  is 
decided,  that  the  mortgage  and  non-delivery  of  perishable  articles,  which 
cannot  be  kept,  or  the  mortgage  of  any  articles  under  an  agreement  or  under- 
standing that  they  are  to  be  used  and  consumed  by  the  mortgagee,  is  in  itself 
fraudulent  against  creditors.  In  Massachusetts,  by  statute  of  1832,  sec.  157, 
Revised  Statutes,  p.  473,  no  mortgage  of  chattels,  except  ships  at  sea,  is 
valid  but  between  the  parties,  unless  possession  is  delivered  to,  and  retained 
by,  mortgagee,  or  the  mortgage  is  recorded  by  the  town  clerk:  recording 
is  equivalent  to  delivery  of  possession  ;  Bullock  v.  Williams,  16  Pickering, 
33.  In  case  of  sales  or  mortgages  of  ships  at  sea,  or  in  a  distant  port,  the 
sale  transfers  the  property  at  once,  and  will  prevail  against  subsequent 
attachments,  unless  the  first  vendee  is  guilty  of  gross  negligence  and  delay 
in  taking  possession  after  the  properly  arrives  :  Putman  v.  Dutch,  8  Mas- 
sachusetts, 286  ;  Joy  et  al.  v.  Scars,  9  Pickering,  4  ;  Turner  and  another  v. 
Coolidge,  2  Metcalf^'  350. 

In  Maryland,  by  statute  of  1729,  recording  of  a  deed  of  sale,  or  mort- 
gage, is  equivalent  to  a  transfer  of  possession  ;  and  the  want  of  both  renders 
the  sale,  gift,  or  mortgage,  nought,  except  as  between  the  parlies  ;  and 
actual  notice  is  equivalent  to  recording.  1  Maxey's  Laws  of  Maryland,  192  ; 
Bruce's  Admin's  v.  Smith,  3  Harris  &  Johnson,  499  ;  Hambleton's  Ex'ors 
V.  Hayward,  4  id.  443  ;  Hudson  v.  Warner  and  A'ance,  2  Harris  and  Gill, 
410.  432. 

In  Ohio,  it  is  considered  as  settled,  that  retention  of  possession  upon  abso- 
lute sales  is  not  conclusive  of  fraud,  though  it  is  such  presumptive  evidence 
of  it,  as  puts  upon  the  vendee  the  burden  of  satisfying  the  jury  that  the 
sale  was  fairand  bona  fide.  Rogers  v.  Dare  et  al.,  Wright,  130;  Burbridgc 
V.  Scely,  Morley  &  Co.  id.  359.  See  Shaw  and  Ball  v.  Lowry,  id.  190, 
as  to  what  ciicumslances  will  make  the  conveyance  void. 

In  Tennessee,  we  find  llic  distinction  taken  as  to  possession  according  to 
the  title  in  the  deed  ;  but  the  presumption  is  broken  down  to  be  a  mere 
matter  of  evidence  for  the  jury.  Originally  the  principle  of  Hamilton  v, 
Russel,  was  adopted,  and  it  was  held,  that  retaining  possession  upon  an 
absolute  sale  was  a  fraud  in  law  ;  Ragan  v.  Kennedy,  1  Overton,  91,  (a.  d. 
1804) :  but  in  Callen  v.  Thompson,  3  Yerger,  475,  (a.  d.  1832,)  the  cases, 
and  the  reasons  of  them,  were  examined,  and  it  was  held,  thai  possession  is 
not  in  itself  a  fraud,  but  is  only  such  prima  facie  evidence  of  it,  as  puts  upon 
the  vendee  the  burden  of  proving  fairness,  and  that  proof  of  fairness,  and  a 
full  and  adequate  consideration,  will  repel  the  presumption  of  fraud  ;  con- 
firmed in  Youno-  &  Youn^  v.  Pate  and  Kernigog,  4  id.  104,  and  Maney  v. 
Killough,  7  id.  440..  It  is  evidence  of  fraud,  when  the  possession  is  retain- 
ed contrary  to  the  right  and  title  transferred  by  the  deed,  but  not  if  the 
retention  be  in  accordance  therewith  ;  thus,  it  is  not  evidence  of  fraud  if  the 
mortgagor  remain,  with  the  assent  of  the  mortgagee,  in  possession,  till  default, 
for  he  is  in  that  case,  entitled  to  do  so,  whetlier  it  be  so  agreed  by  the  deed 
or  not;  but  to  remain  after  default  is  evidence  of  fraud,  fur  thai  is  not  con- 
sistent with  the  title.  So  upon  an  assignment  to  a  trustee  for  the  benefit  of 
creditors,  it  is  evidence  of  fraud  if  the  grantor  remain  in  possession  after  the 


TWYNE     S     CASE.  71 

time  when  the  trustee  ought  to  take  possession  and  sell ;  and  if,  by  the  deed, 
the  trustee  is  to  take  possession  and  sell  immediately',  then,  retaining  pos- 
session at  all  is  evidence  of  fraud ;  Darwin  v.  Ilanlej^,  3  id.  502  ;  Maney 
V.  Killough.  But  should  the  property  be  of  a  kind  which  is  consumed  by 
the  use  of  it,  as  domestic  stores,  then  the  debtor's  continuing  in  the  use  of 
it,  is  evidence  of  fraud,  in  fact,  for  the  jury  ;  Darwin  v.  Handley  ;  Charlton 
V.  Lay,  5  Humphreys,  496;  and  if  the  use  of  such  things  be  retained  bv 
a  stipulation  in  the  deed,  the  conveyance  would  be  absolutely  void,  for 
it  would  necessarily  be  in  trust  for  the  debtor,  and  in  hindrance  of  his  cre- 
ditors ;  SomerviUo  v,  Ilorton,  4  id.  541;  confirmed  in  Maney  v.  Killough; 
Simpson  v.  Mitchell,  8  id.  419  ;  Richmond  v.  Cardup,  Meigs,  581  ;  Trabue 
V.  Willis,  id.  583,  n. ;  and  now  adopted  in  Massachusetts ;  and  approved 
of  in  Alabama  ;  Ravisies  v.  Alston,  trustee,  5  Alabama,  297.  302  ;  Wis- 
wall  V.  Ticknor  &  Day,  6  id.  179.  184.  Delivery  of  possession  on  a  con- 
ditional sale,  gives  no  title  to  those  purchasing  from  the  conditional  vendee  ; 
Gambling  v.  Read,  Meigs,  281. 

In  New  Jersey,  in  Chunar  v.  Wood,  1  Halsted,  155,  it  was  decided, 
without  hesitation,  that  "a  conveyance  of  chattels  unaccompanied  by  pos- 
session, is  absolutely  void"  against  subsequent  purchasers  ;  but  in  Sherron 
V.  Humphreys,  2  Green,  217.  220,  it  seems  to  be  doubted  whether  a  sale, 
unaccompanied  by  possession,  is  in  itself  void  against  creditors. 

In  Missouri,  in  the  earlier  cases,  it  was  held,  that  retention  of  possession 
on  sales  and  mortgages,  Avas  fraudulent  in  law;  but  the  later  decisions 
determine  that  evidence  is  admissible,  at  least  in  the  case  of  mortgages,  to 
show  that  the  transaction  is  fair;  Shepherd  v.  Trigg,  7  Missouri,  151.  157  ; 
Ross  V.  Cruisinger,  Id.  245  ;  King  v.  Bailey,  8  Id.  332. 

EXECUTIONS  to  hinder  and  delay  creditors,  are  included  in  the  statute 
13  Eliz.  ch.  5.  In  the  Circuit  Court. of  the  3rd  circuit,  the  distinction  is 
established  between  a  delay  by  the  officer,  and  a  delay  by  the  order  or 
advice  of  the  plaintiff  in  the  execution  ;  the  officer,  after  a  levy,  need  not 
remove  the  property  nor  sell  immediately,  if  the  sale  be  within  a  reasonable 
time  ;  but  the  only  legal  purpose  of  an  execution  is  to  obtain  satisfaction  of 
the  debt,  and  therefore  if  the  plaintiff  directs  the  sheriff  not  to  execute  it 
till  a  certain  lime,  or  till  further  orders,  or  directs  him  to  levy,  and  leave  the 
property  with  the  debtor  until  otherwise  directed  ;  this  at  once  renders  the 
execution  fraudulent  and  void  against  later,  executions  levied  before  the 
order  not  to  proceed  is  countermanded  ;  and  the  goods  remaining  in  the 
debtor's  hands  an  unreasonable  length  of  time  with  the  knowledge  and 
assent  of  the  plaintiff  in  the  execution,  is  legal  evidence  of  the  delay  being 
his  act:  U.  S.  v.Conyngham,  et  al.,  Wallace's  C.  C.  R.  178;  (brief  note  to  S. 
C  without  arguments  or  opinions,  in  4  Dallas,  358  ;)  Barnes  et  al,  v.  Billing- 
ton  et  al.,  1  Washington  C.  C.  R.  29.  .37 ;  Berry  v.  Smith,  3  id.  60.  The 
establishment  of  this  clear  and  satisfactory  principle,  which  has  been 
adopted  in  New  York  and  Pennsylvania,  is  due  to  Judge  Griffith,  of 
New  Jerse)',  whose  opinion  in  the  case  of  U.  S.  v.  Conyngham  et  al.  is  a 
a  fine  specimen  of  the  powers  of  that  able  lawyer,  and  highly  accomplished 
scholar. 

In  New  York,  the  same  distinction  is  established  in  Rew  v.  Barber,  3 
Cowen,  272,  and  Russell  v.  Gibbs,  5  id.  390;  Ball  v.  Shell,  21  Wendell, 


72  SMITIISLEADINOCA8ES. 

222;  Knower  V,  Barnard,  5  Hill,  377;  The  Herkimer  County  Bank  v.- 
Brov/n,  6  id.  232;  and  the  older  cases  accord  with  this  distinction,  though 
not. expressed  to  be  grounded  upon  it ;  the  executions  being  held  fraudulent, 
where  the  possession  or  use  was  left  a  long  time  with  the  debtor  by  direc- 
tion of  the  plaintitr,  in  Storm  &  Beekman  v.  Woods,  11  Johnson,  110; 
Farrington  &  Smith  v.  Sinclair,  15  id.  428,  and  Kellog  v.  Griffin,  17 
id.  271;  and  it  being  held  in  Whipple  v.  Foot,  2  id.  418,  and  Doty  y.- 
Turner,  8  id.  20,  that  mere  delay  does  not  avoid  the  levy,  though  great 
delay  might  authorize  the  jury  to  infer  the  consent  and  direction  of  the 
plaintitr. 

In  Pennsylvania,  the  law  now  appears  to  be  precisely  the  same,  though 
formerly  difierent,  or,  rather,  unsettled.  It  is  evident,  indeed,  from  Levy 
V.  Wallis,  and  Chancellor  v.  Phillips,  4  Dallas,  167.  213,  and  other  cases 
referred  to  in  U.  S.  v.  Conyngham  et  al.,  Wallace  C.  C.  R.  178,  that  the 
early  decisions  in  Pennsylvania  had  fluctuated,  because  the  true  principle 
was  not  discovered  ;  but  upon  that  principle  being  stated  by  Judge  GRiPFrfH, 
and  more  clearly  explained  by  Judge  Washington,  the  decisions  in  Penn- 
sylvania have  ever  since  been  in  accordance  with  it.  Merely  leaving  the 
property  in  possession  of  the  debtor  is  not  fraudulent;  but  an  order  by  fhe 
plaintifi'  in  the  execution  to  the  sheritl  to  delay  proceedings,  renders  the 
execution  fraudulent  against  later  executions  levied  during  the  stay,  or 
against  subsequent  purchasers  ;  whether  the  levy  be  returned  or  not,  and 
whether  or  not  the  later  claimant  had  notice  ;  Eberle  v.  Mayer,  1  Rawle, 
366;  Commonwealth  v.  Strernback  and  others,  3  id.  311  ;  M'Clure  v.  Ege, 
7  Watts,  74  ;  Melz  and  another  v.  Ilaniuan,  5  Wharton,  150  ;  the  test  is, 
"  the  presence  or  the  absence  of  a  direction  to  slay  proceedings  on  the  levy. 
The  principle  of  this  test  is,  that  to  levy  with  directions  to  proceed  no 
further,  can  be  referred  to  no  object  but  the  creation  of  a  lien,  which  the 
law  does  not  tolerate  ;"  per  Gibson,  C.  J,,  in  Hickman  v.  Caldwell,  4 
Rawle,  376;  and  that  an  order  to  stay  proceedings  in  case  of  household 
furniture,  will  have  the  same  fraudulent  efP.'Ct,  is  the  point  decided  in  Com- 
monwealth V.  Strernback  and  others.  An  order  will  have  this  effect,jthough 
there  be  no  fraudulent  intent,  and  of  course  lakingout  execution  with  intent 
not  to  have  it  executed  bona  fide,  and  it  be  not  so  executed,  though  there 
be  no  order  not  to  proceed,  will  postpone  the  execution.  Weir  v.  Hale,  3 
Watts  &  Sergeant,  285.  But  a  delay  proceeding  from  the  officer,  though 
by  sufTerance  of  the  plaintiff,  without  fraud  on  his  part,  will  not  postpone 
the  plaintifT's  execution  ;  Howell  v.  Atkyn,  3  Ravvl^,  282.,  explained  in 
Hickman  v.  Caldwell ;  M'Coy  v.  Reed,  5  Watts,  300.  But  though  the 
rule  in  Pennsylvania  is,  that  the  officer  need  not  "  remove  the  property, 
nor  put  a  person  in  charge,  nor  sell  immediately;"  Commonwealth  v. 
Strernback  and  others ;  yet  it  is  required  that  he  should  do  it  in  a  reason- 
able time  ;  Wood  v.  Vanarsdale,  4  Rawle,  401  ;  for  if  the  property  be  left 
unreasonably  long,  the  delay  will  afTord  evidence  of  the  plaintifT's  being 
the  fraudulent  cause  of  it,  and  will  therefore  vitiate  the  execution  ;  Corlies 
&  Co.  v.  Stanbridge,  5  Rawle,  286.  290  ;  especially  if  the  levy  is  not 
returned  ;  Lewis  v.  Smith,  2  Sergeant  &  Rawle,  142.  Household  goods 
cannot  be  left  more  than  a  reasonable  time  ;  Cowden-v.  Brady  and  others 
8  id.  505.  510;  as  to  the  reasonable  length  of  time  in  such  cases,  see 
Commonwealth  v.  Strernback  and  others,  and  Dean  and  othe_rs  v.  Patton, 


TVVYNE's    CASE.  73 

13  Sergeant  &  Rawle.  341.  345  ;  and  as  to  Avhat  is  a  reasonable  time  in 
general  cases,  see  Judge  Griffith's  opinion  in  U.  S-.  v.  Conyngham  et  al. 

In  Kentucky,  a  similar  principal  has  been  adopted;  the  officer  is  not 
obliged  to  take  exclusive  possession  under  a  levy  on  chatties,  and  therefore, 
the  simple  retention  of  the  property  by  the- debtor,  if  it  be  not  continued  longer 
than  a  vigilant  officer  may  be  conveniently  able  to  sell  the  property,  is  not, 
alone,  even  prima  facie  proof  of  a  fraudulent  intent,  though  it  might  be  some 
slight  evidence  of  collusion  :  but  a  retention  of  possession,  with  a  right  in 
the  debtor  to  consume  or  sell  the  property,  or  any  indefinite  holding  by  the 
debtor,  without  any  effort  by  the  creditor  to  sell  the  property,  within  the 
ordinary  or  usual  time,  is  prima  facie  evidence  of  fraud  ;  and  therefore  if 
there  be  a  continued  possession  by  the  debtor  for  months  after  the  levy,  and 
there  be  no  evidence  to  rebut  the  presumption  of  fraud,  the  jury  will  be 
directed- to  find  that  the  levy  is  void  against  a  subsequent  execution  creditor; 
Swigert,  &c.  v.  Thomas,  7  Dana,  220.  222. 

In  New  Jersey,  the  rule  in  Berry  v.  Smith  is  not  strictly  adopted  :  mere 
delay,  or  on  order  from  the  plaintiff  not  to  proceed,  will  not  postpone  an 
execution  to  a  subsequent  one;  Casher  v.  Peterson,  1  Southard,  317; 
Williamson  v.  Johnston,  7  Ilalsted,  86;  Sterling  v.  Van  Cleve,  id.  285. 
To  have  that  effect,  the  conduct  of  the  prior  execution  creditor  must  be 
fraudulent;  but  it  is  not  necessary  to  prove  actual  fraud  in  the  concoction 
of  the  judgment,  or  an  actual  design  to  defeat  or  delay  other  creditors  ;  it 
is  enough  if  the  proceedings  of  the  prior  execution  creditor  are  an  abuse 
of  the  process  of-  the  law.  Accordingly,  it  has  been  determined  that 
although  the  creditor  when  he  delivers  his  execution,  or  at  any  time  after- 
wards, may  direct  the  sheriff  not  to  ])roceed  to  a  sale  without  funher  orders 
from  him,  or  unless  urged  on  by  other  executions,  and  will  not  thereby  lose 
his  priority,  if  he  act  in  good  faith  ;  yet  that  if  the  debtor  is  permitted  with 
the  knowledge  and  consent  of  the  execution  creditor,  express  or  implied, 
not  only  to  retain  the  possession  of  the  property,  and  to  use  and  enjoy  it  for 
its  ordinary  and  appropriate  purposes,  as  in  the  case  of  household  goods, 
but  to  exercise  an  unlimited  control  over  all -the  property  levied  on,  what- 
ever may  be  its  nature,  and  to  use,  sell,  exchange  or  consume  it,  as  the 
rightful  and  absolute  owner,  it  is  such  evidence  of  a  fraudulent  and  colour- 
able use  of  the  process  of  the  court,  whether  the  debt  be  a  real  and  just  one 
or  not,  as  to  postpone  the  execution  to  younger  ones  sued  out  and  prosecuted 
in  good  faith;  Cumberland  Bank  v.  Hann,  4  Harrison,  1G7.  169  ;  Cook  v. 
Wood,  1  id.  254.  In  Delaware,  also,  a  mere  order  to  the  sheriff  to  hoJd 
the  execution  in  his  hands  and  not  proceed  unless  instructed  to  do  so,  or 
compelled  by  other  judgment  creditors,  does  not  postpone  an  execution  ; 
Houston  V.  Sutton,  3  Harrington,  37.  The  practice  of  allowing  executions 
to  be  used  for  the  purposes  of  a  lion  is  also  avowedly  established  in  South 
Carolina,  and  dortnant  executions  are  never  postponed  but  for  actual  fraud  ; 
Snipes  v.  The  Sheriff  of  Charleston  district,  I  Bay,  295  ;  Brown  v.  Gilli- 
land,  3  Desaussure,  539;  Greenwood  et  al.  v.  Naylor,  1  M'Cord,  414, 
where  it  is  decided,  that  endorsing  on  a  fi.  fa.  "lodged  to  bind,"  which, 
was  regarded  as  a  stay,  did  not  prevent  the  execution  taking  the 
money  made  on  a  younger  writ;  Adair  v.  M'Daniel  &  Cornwell,  1 
Bailey,   158. 

In  the  Eastern  States,  where  attachment  is  a  usual  mesne  process,  it  is 


74  smith's    LEADING    CASES. 

generally  held  that  possession  must  be  taken  and  kept,  or  the  property  is 
liable  to  future  attachments.  See  Bagley  v.  White,  4  Pickering,  395,  and 
cases  cited;  Taintor  v.  Williams,  7  Connecticut,  271;  Mills  v.  Camp, 
14  id.  219  ;  Harding  v.  Janes,  4  Vermont,  40:^.  405,  dictum. 

11.  B.  W. 


[*15]  *DUMrOR'S  CASE. 

IIIL!  45  ELIZ.— IN  THE  KING'S  BENCH. 

[reported  4  COKE,   119.] 

A  condition  not  to  alien  without  license  is  determined  h}'    the  first    license  granted. 
Apportionment  of"  Conditions. 

In  trespass  between  Dnmpor  and  Symms,  upon  tho  general  issue,  the 
jurors  gave  a  special  verdict  to  this  efFect :(«)  the  President  and  Scholars  of 
the  College  of  Corpus  Christi,  in  Oxford,  made  a  lease  for  years  in  anno  10 
Eliz.  of  the  land  now  in  question,  to  one  Bolde,  proviso  Ihat  the  lessee  or  his 
assigns  should  not  alien  the  premises  to  any  person  or  persons,  u'ithoiitthe 
special  license  of  the  lessors.  ,Qnd  afterwards  the  lessors  by  their  deed,  anno 
13  Eliz.,  licensed  the  lessee  to  alien,  or  demise  the  land,  or  any  part  of  it  to 
any  person  or  persons  quibuscunque.  And  afterwards,  anno  15  Eliz.,  the 
lessee  assigned  the  term  to  one  Tubbe,  who  by  his  last  will  devised  it  to  his 
son,  and  by  the  same  will  made  his  son  executor,  and  died.  The  son  enter- 
ed generally,  and  the  testator  was  not  indebted  to  any  person,  and  afterwards 
the  son  died  intestate,  and  the  ordinary  committed  administration  to  one  who 
assigned  the  term  to  the  defendant.  Tiie  President  and  Scholars,  by  war- 
rant of  attorney,  entered  for  the  condition  broken,  and  made  a  lease  to  the 
plaintiff' for  twenty-one  years,  who  entered  upon  the  defendant,  who  Y-e-en- 
tered,  upon  which  re-entry  this  action  of  trespass  was  brought  •,[IA  and  that 
upon  the  lease  made  to  Bolde,  the  yearly  rent  of  335.  4d.  was  reserved,  and 
upon  the  lease  to  the  plaintifT,  the  yearly  rent  of  22s.  was  only  reserved. 
And  the  jurors  prayed  upon  all  this  matter  the  advice  and  discretion  of  the 
court,  and  upon  this  verdict  judgment  was  given  against  the  plaintiff.  And 
in  this  case  divers  points  were  debated  and  resolved  ;  1st.  That  the  aliena- 
_  ^- -  ,  tion  by  license  to  Tnbbs  *had[c)  determined  the  condition,  so  that 
L  J  no  alienation  which  he  might  afterwards  make  could  break  the  pro- 
viso, or  give  cause  of  entry  to  the  lessors,  for  the  lessors  could  not  dispense 
with  an  alienation  for  one  time,  and  that  the  same  estate  should  remain  sub- 

(a)  Co  Ent.  684.  pi.  22.     Cr.  El.  815,  81  fi.  (h)  See  3  Wilson,  234. 

Cf)  1  Roll.  Rep.  70.  3^0.     1  Roll.  422.  471.    2  Bulst.  2J1.    Cro.  Jac.  398.     3  Co.  Pen- 
nant's  case.    3  Ed.  (j.    Dyer,  66,  a. 


DUMPO  r's    C  AS  E.  f^ 

ject  to  the  proviso  after.  And  although  the  proviso  be,  that  the  lessee  or  his 
assio-ns  shall  not  alien,  yet  when  the  lessors  license  the  lessee  to  alien,  they 
shall  never  defeat,  by  force  of  the  said  proviso,  the  term  which  is  absolutely 
aliened  by  their  license,  inasmuch  as  the  assignee  has  the  same  term  which 
was  assigned  by  their  assent ;  so  if  the  lessors  dispense  with  one  alienation, 
they  thereby  dispense  with  all  alienations  after  :  for  inasmuch  as  by  force  of 
the  lessor's  license,  and  of  the  lessee's  assignment,  the  estate  and  interest  of 
Tubbe  was  absolute,  it  is  not  possible  that  his  assignee  who  has  his  estate 
and  interest  shall  be  subject  to  the  first  condition  ;  and  as  the  dispensation 
of  one  alienation  is  the  dispensation  of  all  others,  so  it  is  as  to  the  persons, 
for  if  the  lessors  dispense  with  one,  all  the  others  are  at  liberty.  And  there- 
fore it  was  adjudged,  Trin.  28  Eliz.  Rot.  256,  in  Com.  inter  Leeds, ((/)  and 
Compton,  that  where  the  Lord  Siaflbrd  made  a  lease  to  three,  upon  condition 
that  they  or  any  of  them  should  not  alien  without  the  assent  of  the  lessor, 
and  aftewards  one  aliened  by  his  assent,  and  afterwards  the  other  two  with- 
out license,  and  it  was  adjudged,  that  in  this  case  the  condition  beino-  deter- 
mined as  to  one  person  (by  the  license  of  the  lessor)  was  dctermincti  in  all. 
And(e)  Popham,  Chief  Justice,  denied  the  case  in  16  Eliz.,  Dyer(/)  334; 
that  if  a  man  leases  land  upon  condition  that  he  shall  not  alien  the  land,  or 
any  part  of  it,  without  the  assent  of  the  lessor,  and  afterwards  he  aliens  part 
with  the  assent  of  the  lessor,  he  cannot  alien  the  residue  without  the  assent 
of  the  lessor  ;  and  conceived,  that  is  not  law,  for  he  said  the  condition  could 
not  be  divided  or(§-)  apportioned  by  the  act  of  the  parties  ;  and  in  the  same 
case,  as  to  parcel  which  was  aliened  by  the  assent  of  the  lessor,  the  condi- 
tion is  determined  ;  for,  although  the  lessee  aliens  any  part  of  the  residue, 
the  lessor  shall  not  enter  into  the  part  aliened  by  license,  and  therefore 
(he  condition  being  determined  in  part  is  determined  in  all.  And  therefore 
the  Chief  Justice  said,  he  thought  the  said  case  was  falsely  printed,  for  he 
lield  clearly  that  it  was  not  law.  Nota  Reader,  Pascha;  14  *Eliz. 
Rot.  1015,  in  Com.  Banco,  that  where  the  lease  was  made  by  deed  L  '  J 
indented  for  twenty-one  years  of  three(/i)  manors.  A.,  B.,  C,  rendering 
rent,  for  A.  6/.,  for  B.  5/.,  for  C.  10/.,  to  be  paid  in  a  place  out  of  the  land, 
with  a  condition  of  re-entry  into  all  the  three  manors,  for  default  of  payment 
of  the  said  rents,  or  any  of  them,  and  afterwards  the  said  lessor  by  deed 
indented  and  enrolled,  bargained  and  sold  the  reversion  of  one  house  and 
forty  acres  of  land,  parcel  of  the  manor  of  A.,  to  one  and  his  heirs,  and  after- 
wards, by  another  deed  indented  and  enrolled,  bargained  and  sold  all  the 
residue  to  another  and  his  heirs,  and  if  the  second  bargainee  should  enter 
for  the  condition  broken  or  not;  was  the  question  ;  and  it  was  adjudged  that 
he  should  not  enter  for  the(«)  condition  broken,  because  fhe  condition  he.in<' 
entire,  could  not  he  apportioned  by  the  act  of  the  parties,  but  by  the  seve- 
rance of  part  of  the  reversion  it  is  destroyed  in  all.  But  it  was  agreed, 
that  a  condition  may  he{k)  apportioned  in  two  cases.  1.  By  act  in  lato. 
3.  By  act  and  ivrong  of  the  lessee.     By  act  in  law,  as  if  a  man  seized  of 

(rf)  1  Roll.  479.    Cro.  El.  81G.    Gcdb.  93.    Noy,  32.     4  Leon.  58.    2  Bul^-t.  291. 
(f)  Styles,  317.  (/)  Dy.  3.34,  pi.  32.    Cro.  El.  816.     Styles,  3.34.     Moor,  205. 

(^)  Co.  Lit.  215,  a.  (h)  Dyer,  308,309.  pi.  75.    5  Co,  55,  b.    Moot,  97,98. 

(i)  Co.  Lit.  215,  a.     Cro.  Jac.  390.     5  Co.  55,  b. 
(A)  3  Bulstr.  154.    Co.  Lit.  215,  a. 


76  S  M  ITII  '  S    LE  A  DIN  G    C  ASES. 

two  acres,  the  one  in  fee,  and  the  other  in(/)  borough  English,  has  issue 
two  sons,  and  leases  both  acres  for  life  or  years  rendering  rent  with  condi- 
tion, the  lessor  dies,  in  this  case  by  this  descent,  which  is  an  act  in  law,  the 
reversion,  rent,  and  condition  are  divided.  2.  By  act  and  wrong  of  the 
lessee,  as  if  the  lessee  makes  a  feoffinent  of  part,  or  commits  waste(n)  in 
part,  and  the  lessor  enters  for  the  forfeiture,  or  recovers  the  place  wasted, 
there,  the  rent  and  condition  shall  be  apportioned,  for  none  shall  take  advan- 
tage of  his  own  wrong,  and  the  lessor  shall  not  be  prejudiced  by  the  wrong 
of  the  lessee  ;  and  the  Lord  Dyer,  then  Chief  Justice  of  the  Common  Fleas, 
in  the  same  case,  said  that  he  v.^ho  enters  for  a  condition  broken,  ought  to  be 
in  of  the  same  estate  which  he  had  at  the  time  of  the  condition  created, 
and  that  he  cannot  have,  when  he  has  departed  with  the  reversion  of  part ; 
and  with  that  reason  agrees  Lilt.  80,  b.  And  vide  4  &  5  Ph.  &  Mar. 
Dyer,(o)  152,  wliere  a  proviso  in  an  indenture  of  lease  was,  that  the  lessee, 
his  executors  or  assigns,  should  not  alien  to  any  person  without  license 
of  the  lessor,  but  only  to  one  of  the  sons  of  the  lessee  ;  the  lessee  died,  his 
executor  assigned  it  over  to  one  of  his  sons,  it  was  held  by  Stamford  and 
Catlyn,  that  the  son  might  alien  to  whom  he  pleased,  without  license, (i)  for 
r  *i  o  -|  I'l^  condition  as  to  the  son,  *was  determined,  which  agrees  with  the 
L  -*  resolution  of  the  principal  point  in  the  case  at  bar.  2.  It  was 
resolved,  that  the  statutes  of  13  Eliz.  cap.  10,  and  18  Eliz.  cap.  11,  con- 
cerning leases  made  by  Deans  and  Chapters,  Colleges,  and  other  ecclesiasti- 
cal persons,  are(p)  general  laws  whereof  the  court  ought  to  take  knowledge, 
although  they  are  not  found  by  the  jurors,  and  so  it  was  resolved  between 
Claypole  and  Carter,  in  a  writ  of  error  in  the  King's  Bench. 


"The  profession  have  always  won-  v.  Macpherson,  14  Ves.  173.     But  the 

dered  at  Damper's  case,"  said  iMansheld,  license,   in  order  to  put  an  end  to  the 

C.  J.,   in  Doe  v.  Bliss,  4  Taunt.  736,  condition,  niust  be  such  a  license  as  is 

"but  it  has  been  law  so  many  centuries,  therein    contemplated,    for   where   the 

that  we  cannot  now  reverse  iL"  "Though  condition   is,  not  to  assijrn  without  li- 

Dumpor's  case  always  struck  me  as  ex-  crnse  in  wriling,  a  parol  licence  is  no 

traordinary,"  (said  Lord  Eldon  in  Brum-  dispensation.     Roe  v.  Harrison,  2  T.  R. 

mel  v.  Macpherson,  14  Ves.  173),  "it  is  425;  Alaclier  v.  Foundling  llospital,  1 

the  law  of  the  land."     Accordingly  it  is  V.  &  B.   191;  Richardson  v.  Evans,  3 

affirmed  by  many  subsequent  decisions,  xMadd.  218,  though  it  is  said  that  if  such 

nay,  has  been  even  carried   further,  for  parol  license  were  used  as  a  snare,  equity 

it  is  held  that  whether  the  license  to  would  relieve.     Richardson  v.  Evans,  3 

assign  be  general,  as  in  the  principal  Madd.  218.     It  seems,  too,  that  if  the 

case,  or  particular,  as  "to'one  particular  condition  be  not  in  general  restraint  of 

person  subject  to  the  performance  of  the  assignment,  but  permit  the  lessee  to  as- 

covenants  in  the  original   lease;"  still  sign  in  one  particular  way,  ex.  gr.   by 

the  condition  is  gone,  and  the  assignee  will ;  an  assignee,  to  whom  the  lease 

may  assign  without  license.     Brummel  has  been  transferred   in  the  permitted 

CO  1  Koll.  Rep.  331.     Co.  Lit.  215,  a, 

(t)  See  Baron  and  Baroness  de  Rutzen  v.  Lewis,  5  Ad.  &,  Ell.  '377. 
(r.)  1  Rol.  Rep.  331.    Moor,  203. 

(y)  Dy.  152.  pi.  7.     Co.  Lit.  215.  a.     Cro.  Eliz.  757.  81 G. 

(t;  Quaere,  see  Lloyd  v.  Crlspc,  5  Taunt.  24Jt;  post  in  nota.  . 

(/))  Autea,7G,  a..   3  Rol.  775.     Yd  v.  106.     Doct.  pi.  337,  333.     Nov,  124.     2  BrownL 

208.  Cro.  El.  816.     Moor,  5D3.     1  Leon.  306,  307. 


DUMPORS    CASE. 


77 


way,  cannot  assign  in  any  other  mode. 
Lloyd  V.  Crispc,  5  Taunt.  249.  "The 
pronnd  of  Dmnpor's  caijc,"  (says  Gibb9, 
j])  "  was  this;  the  proviso  was 'that  the 
lessee  or  his  assigns  should  not  alien  the 
premises  to  any  person  or  persons  with- 
out the  special  license  of  the  lessors ;  the 
lease  was  therefore  to  be  void  if  any  as- 
eignnient  was  made.  And  there  the 
court  was  of  opinion  tiiat  if  the  condition 
was  once  dispensed  with,  it  was  wholly, 
dispensed  with,  because  the  provision 
for  making  void  must  exist  entire,  or 
not  e.xist  at  all.  But  here  is  an  excep- 
tion out  of  the  original  restriction  to 
alienate,  so  that  in  the  alienation  by  will 
made  by  the  lessee  there  was  nothing  to 
license." 

Although,  when  such  a  condition  as 
tiiat  in  Dumpor's  case  exists,  alienation 
without  license  o])crates  as  a  forfeiture 
of  the  term  ;  still,   if  the    lessor,   with 
knowledge  of  the  forfeiture,  receive  rent 
due  since  the   condition   broken,  such 
conduct  upon  his  part  operates  as  a  wai- 
ver of  his  right  to  take  advantage  of  it. 
In  Goodright  v.  Davies,  Cowp.  803,  the 
lease  contained  a  covenant  not  to  under- 
let without  license,  and  a  power  of  re- 
entry to  the  lessor  in  case  of  non-obser- 
vance of  the  covenants;  the  lessee  un- 
derlet various  parts  of  the  premises,  but 
the  lessor  knew  of  it,  and  received  rent 
afterwards.      "The    case,"    said    Lord 
Mansfield,    "  is   extremely   clear.     To 
construe    this  acceptance  of  rent   due 
since  the  condition  broken,  a  waiver  of 
the  forfeiture,  is  to  construe  it  according 
to  the  intention  of  the  parties.     Upon 
the  breach  of  the  condition  the  landlord 
had  a  right  to  enter.    He  had  full  notice 
of  the  breach,  but  does  not  take  advan- 
tage of  it,  but  accepts  rent  subsequently 
accrued.     This  shows  he  meant  that  the 
lease  should  conlmue.     Forfeitures  are 
not  favoured  in  law;  and  when  a  for- 
feiture is  once  waived,  the  court  will  not 
assist  it."     See  Browning  and  Boston's 
case,  Plowd.  133  ;  Roc  v.  Harrison,  2T. 
R.  425.    Doe  d.  Gatehouse,  4  Bnig.  N.  C. 
3S4.      And    other    acts   of  the    lessor, 
besides  acceptance  of  rent,  have  been 
r  r^tn  -,  held    to    waive     a    forfeiture, 
L  J  *when  they  show  an  intention 

on  his  part  that  the  lease  should  con- 
tinue. Doe  V.  Meux,  4  B.  &■  C.  (iOG ;  see 
Doe  V.  Birch,  1  Alee.  &  VVelsby,  408; 
and  Doe  d.  Baron  and  Baroness  de  Rut- 
zen  V.  Lewis,  5  A.  &  E.  277.  It  has 
been  laid  down,  that  there  is  a  difference 
in  this  respect  between  cases  where  the 


lease  is  on  breach  of  the  condition  to  be 
void,  and  those  where  it  is  only  to  be 
voidable  on  the  lessor's  re-entry.    In  the 
latter  case,  acceptance  of  rent  operates 
as  a  waiver  of  the  landlord's  right  to  re- 
enter, but  in  the 'former,  the  lease  be- 
coming   void    immediately    upon     the 
breach  of  the  condition,  it  has  been  laid 
down  by  great  authorities  that  no  sub- 
sequent acceptance  of  rent  will  set  it  up 
ao-ain.     This  distinction  is  laid  down  by 
L'ord  Coke,  1  Inst.  214,  b.,  in  the  follow- 
ing terms  :  "  Where  the  estate  or  lease 
is  Ipso  facto  void  by  the  condition  or  lim- 
itation, no  acceptance  of  the  rent  after 
can   make    it   to  "have   a  continuance, 
otherwise  it  is  of  a  lease  or  estate  void- 
able by  entry."     The  same  law  is  laid 
down  "equally   strongly    in   Pennant's 
case,  3!Rep.  64;  in  Browning  and  Bes- 
ton's  case  in  Plowden ;  see  too'Finch  v. 
Throckmorton,  Cro.  Eliz.  221 ;  Mulcar- 
ry  v.  Eyres,  Cro.  Car.  511 ;  Doe  d.  Sim- 
son    v.' Butcher,    Dougl.  51,  et  notas. 
But  this  distinction  was  never  applied  to 
any  save  leases  for  years,  for  if  a  lease 
for  lives  contain  an  express  condition  to 
be  void  upon  the  breach  of  any  covenant  ■ 
by  the  lessee,  still  it  is  in  contemplation 
of  law  only  voidable  by  re-entry  :  for  it 
is  a  principle  that  an  estate  which  be- 
gins by  livery  can  only  be  determined  by 
entry.      Browning   and    Boston's   case, 
Plowd,  133 ;  Doe  v.  Pritchard,  5  B.  «fc 
Ad.  7G.5.     Even  in  the  case  of  a  lease 
lor  years,  where  the  direction  is  that  it 
shall  become  void  on  breach  of  the  con- 
dition ;  it  will  only  be  void  at  the  option 
of  the  lessor;  for  the  lessee  shall  not 
take  advantage   of  his   own   wrongful 
non-performance  of  his  contract,  in  order 
to  destroy  the  lease,  which  had  perhaps 
turned  out  a  disadvantageous  one.    Doc 
v.   Bancks,  4  B.   &  A.  401;  Read  v. 
Ferr,  6  M.  »fc  S.  121 ;  and  see  Malins  v. 
Freeman,  4  Bingh.  N.  C.  395,  decided 
on  a  similar  principle  ;  nor  can  any  third 
person  treat  it  as  void  until  the  landlord 
has  declared  his  option.  Roberts  v.  Davey, 
4  B.  &  Ad.  604.     In  that  case,  in  tres- 
pass quare  clausum  fregit,  the  defendant 
pleaded  a  license  from  a  previous  owner 
of  the  fee.     Replication,  that  the  license 
was,   on  breach  of  a  certain  condition, 
"  to  cease,  determine,  and  become  utter- 
ly void  and  of  na  eject,"  and  that  the 
condition  had   been  broken,  and  the  li- 
cense thereupon  become  void.     Demur- 
rer, and  judgment  for  the  defendant  on 
the  ground   that,   according   to  Doe  v. 
Bancks  and  Read  v.  Farr,  the  license 


78 


SMITHS     LEADING     CASES. 


was  determinable  only  at  the  option  of 
one.  who  had  not  signified  such  option. 
In  Doe  V.  Daiickd  and  Read  v.  Farr,  the 
lease  was,  by  the  terms  of  it,  to  be  uller- 
ly  void  to  all  intents  and  purposes.  But 
in  Arnsby  v.  Woodward,  G  B.  &-  C.  519, 
where,  in  addition  to  the  words  render- 
ing the  lease  void,  it  was  stated  "  that  it 
should  be  lawful  for  the  lessor  to  re-en- 
ter and  expel  the  tenant"  tlie  court  held, 
that  the  addition  of  those  words  showed, 
that  it  was  tiie  intent  of  the  parties  that 
the  lease  should  be  only  voidable  by  re- 
entry ;  and  consequently,  that  the  land- 
lord had,  by  a  subsecjuent  receipt  of  rent, 
waived  the  forfeiture;  and  in  Doe  v. 
Birch,  1  Mee.  &.  VVelsby,  4U3,  a  clause 
that,  on  the  breach  of  certain  stipulations 
"  it  should  be  lawful  for  the  lessor  to  re- 
take possession  of  the  premises,  and  that 
the  agreement  should  be  null  and  void" 
was  lield  to  have  the  same  eftect,  and 
to  admit  the  question  of  waiver.  See 
also  Dakin  v.  Cope,  2  Russ.  170.  This 
ehows  with  what  strictness  the  courts 
will  road  such  a  proviso  in  order  to  pre- 
vent an  absolute  forfeiture.  Indeed  in 
Arnsby  v.  Woodward,  Lord  Tenterden 
eaid,  that,  supposing  the  proviso  had  been 
in  the  very  same  words  as  in  Read  v. 
Farr  and  Doe  v.  Bancks,  he  should  have 
still  thought  th;it  a  receipt  of  rent  by  the 
landlord  would  be  an  admission,  tliat  the 
lease  was  subsisting  at  tiie  tunc  when 
that  rent  became  due,  and  that  lie  could 
not  afterwards  insist  upon  a  forfeiture 
pre vi'oMs/^  committed  ;  and  his  lordship 
said,  that  to  hold  the  contrary  would  be 
productive  of  great  injustice,  tor  it  would 
enable  a  landlord  to  eject  a  tenant,  after 
he  had  given  him  reason  to  suppose  that 
the  forfeiture  was  waived,  and  atler  the 
latter  had,  on  that  supposition,  expended 
his  money  in  improving  the  premises. 
We  must,  therefore,  look  on  this  dis- 
tinction between  the  possibility  of  waiv- 
ing the  breach  of  a  condition  which  is 
to  render  the  lease  void,  and  that  of  one 
which  is  to  render  it  voidable,  as  shaken ; 
and  indeed  in  Roberts  v.  Davey,  1  B.  & 
r*oo^  ^^'^o'-  G^"^'  *^>r.  W.  Follett  ar- 
'■''•'  gucd  that  it  had  been  virtually 
overruled.  Still  tliere  is  no  express  de- 
cision to  that  eflect,  unless  Roberts  v. 
Davey  be  so  considered  ;  nor  does  it  ap- 
pear a  necessary  consecjuence,  that,  be- 
cause the  tenant  is  prevented  from  tak- 
ing advantage  of  his  own  wrong  by 
insisting  that  the  lease  is  absolutely  void, 
it  shall  therefore  be  taken  to  be  only 
voidable  when  that  construction  makes 


for  the  tenant  and  against  the  landlord; 
and,  when  we  consider  the  high  author- 
ities adducible  \jn  support  of  the  distinc- 
tion in  question,  and  their  analogy  to  the 
cases  in  which  it  has  been  determined 
that  no  acceptance  of  rent  by  a  remain- 
derman will  confirm  a  lease  void  as 
against  him,  Simson  v.  Butcher,  Dougl. 
51,  et  notis,  Jenkins  v.  Church,  Cowp. 
483,  we  may  conjecture  that  it  will  not 
be  quietly  allowed  to  become  obsolete  ; 
and  that  further  controversy  may  arise 
upon  the  question,  whether  the  landlord, 
in  case  of  a  stipulation  that  the  lease 
shall  become  void  on  breach  of  a  condi- 
tion which  has  been  broken,  is  precluded 
by  a  subsefjuent  receipt  of  rent  from 
treating  the  lease  as  determined.  On 
that  question  tlie  words  of  Lord  Coke  are 
express,  that  ^^  where  the  lease  is  ipso 
facto  void  by  the  condition,  no  accept' 
unce  of  rent  after  can  make  it  to  have  a 
continuance,"  1  Inst  214;  and  see  also 
the  other  authorities  above  cited.  On 
the  other  hand,  the  case  of  Roberts  v. 
Davey  is  extremely  strong.  There,  the 
person  seeking  to  treat  the  license  as 
void  was  not  the  licensee  nor  any  one 
connected  with  him  in  interest;  he  was 
not  taking  advantage  of  any  wrong  done 
by  himself;  nor  was  he  enabling  the 
licensee  to  do  so,  which  dilFers  the  case 
from  Read  v.  Farr,  where  the  defendant, 
who  sought  to  take  advantage  of  the  ten- 
ant's wrongful  act,  was  connected  with 
him  in  interest;  so  that,  (unless  there 
be  a  ditlcrence  between  the  right  of  a 
landlord  to  consider  the  lease  absolutely 
void  before  any  expression  of  his  election, 
and  that  of  a  third  party  to  do  so,)  Rob- 
erts V.  Davy  is  no  doubt  an  autiioritj 
that  it  is  only  voidable,  in  point  of  law, 
and  with  relation  to  all  persons,  includ- 
ing the  landlord.  And  if  the  landlord  as 
well  as  the  tenant  must  treat  it  as  void- 
able, no  doubt  the  receipt  of  rent  may 
operate  as  a  waiver  of  the  forfeiture. 
Perhaps  the  true  rule  may  be  ultimately 
held  to  be,  that  the  effect  of  the  proviso 
rendering  the  lease  void  is  only  to  dis- 
pense with  entry,  and  to  substitute  for 
it  any  formal  expression  of  the  lessor's 
election  to  avoid  the  lease.  On  the  ques- 
tion what  is  a  sufficient  entry  where 
entry  is  requisite,  see  Doe  v.  Pritchard, 
5  B.  &  Ad.  765 ;  Doe  v.  Williams,  ibid, 
783. 

Although  acceptance  of  rent  falling 
due  after  a  forfeiture  operates  as  a  waiv- 
er, yet  acceptance  after  fljrfeiture  of  rent 
which  became  due  before  the  forfeiture 


DU  mpor's   case. 


79 


will  not  do  so.  Nor  does  the  lessor  waive 
his  r"M.t  to  recover  such  rent  in  an  ac- 
tion al  thou -h  the  words  of  the  condition 
may'  be  hat"the  lessor  shall  have  the  pre- 
n uses  arrain,  "  as  if  the  indenture  had 
"eer  been 'made"  The  proper  con- 
duction of  such  a  proviso  being,  tha 
from  the  time  of  re-entry  the  lessor 
Kid  have  the  lease  again   as  If  tie 

indenture  had  never  been  made.    lUn. 
home  V.  Watson,  4  Bing.  N.  O.  1<«. 

There  is  some  distinction,  in  respect 
of  waiver,  between  a  condition  against 
underlettingand  one  against  assignment , 
?or  m  the  former  case,  if  the  lessee  un- 
derlet, and  the  lessor  accept  subsequent- 
ly accruing  rent,  so  as  to  waive  the  for- 
&,stUl,  if  the  lessee,  alter  the  ex- 
piration   of  that   term,    make    another 

Snderlease,   the    l«^^°^."2^y  Jf  "f^^^  I 
Doev.  Bliss,4Taunt.  /.^o;bntit  the 

lessor  were,  by  ac^^P^^"'^^'^//^  ,e? 
waive  the  forfeiture  incurred  by  the  le^ 
Tee's  assignment,  there  would  be  an  end 
of  the  colid.tion  altogether,  exactly  as 
?here  would  be  if  he  had  licensed  it. 
Lloyd  V.  Crispe,  5  Taunt.  249 ,  1  Urn. 
Saund.  283,  b.  n.  x  ^^^  ^  B_  &  f  d. 
781  And  it  has  been  thought  that, 
even  if  the  lessor  were  express  y  to 
Tcense  the  lessee  to  underlet,  still  the 

essee  mioht  incur  a  forfeiture  by  mak- 
nfa  f^c^i  underlease  after  the  expira- 
tll^liof  that  licensed;  for  that  the  license 
would  in  that  case  only  operate  as  a 
suspension  of  the  condition,  and  a  con- 
d.tion  may  be  suspended,  tbough  it  can- 
not be   apportioned.     1   VVms.   Saund. 

With  respect  to  what  will  ^niount  to 
a  breach  of  such  conditions-When  he 
condition  was  "not  to  ass-gn,  trans ter, 
set  over,  or  otherwise  do  and  put  away 
the  indenture  of  demise  or  the  premises 
Uiereby  demised,  or  any  part  thereof, 
an  underlease  was  held  no  breach  of  it^ 
Crusoe  v.  Bugby,  3  Wils.  234_  but  a 
condition  not  to  "  set,  let,  or  assign  over 
the  demised  premises,  or  any  part  there- 
of," comprehends  underleases  ;Koe  v. 

TT  V.    •:«  T"   R  A'^n-  Roe  V.  bales,  1 

Harrison,  6  i.  K-  'i-J)  ^'■^'^  „^f  tr, 

M  &  S  297;  and  a  covenant  not  to 
"fet,  set,  or  demise  for  all  or  any  part 
of  the  term,"  assignments.  Greenaway 
V.  Adams,  12  Ves.  395.  An  assignment 
by  operation  of  law  is  no  breach  of  a 
condition  not  to  assign,  ex.  gr.  it  the 
r*^^-,  lessee  become  bankrupt,  or 
[^^Ithe  lease  *be  taken  in  exe- 
cution, Philpot  V.  Iloare,  2  Atk.  21J; 
Doev.  Bevan,  3  M.  &  S.  353;  Doev. 


Carter,  8   T.    R.  57;    unless  such  an 
event  be   brought  about  by  the  fradu- 
lent  procurement  of  the  lessee  himselt. 
Doe  V.  Carter,  8  T   R.  300.     See  Doe 
V  Hawkes,  2  East,  481.     But  the  lessor 
niay,  if  he  please,  by  the  insertion  ot 
express  words  for  that  purpose,  render 
even  such  an  assiirnment  a  forleiture. 
Roe  V.  (ialliers,  2  T.  R.  133 ;  Davis  v. 
Eyton,  7  Bing.  154.  See  Doe  v.  Hawkes 
2  East,  481;    Doe  v.  Clarke,  8  East, 
185.      Doe  v.   David,   5   'lyrwh.   12o. 
Cooper  V.  Wyatt.  5  Madd    482.     Yar- 
mold  V.  Moorhonse,  1  R.  &  Myl.  .364. 
R  V.  Robinson,  Wightw.  386.    And  the 
landlord  re-entering  for  such  atorfeiture 
is  entitled  to  the  emblements.    Davis  v. 
Evton.     Marriage  does  not  operate  as  a 
forfeiture.     Anon.  Moor,  21.     Whether 
a  device  be  a  breach  of  the  condition  not 
to  assion,  has  been  disputed.     l*ox  v. 
SwaniC Styles, 483;  Dumpor  v.  Symons, 
Cro.  Eliz.  816;  Berry  v.  Taunt,  ib  331. 
And  see  some  observations  on  Doe  v. 
Bevan,  3   M.  &  S.  353.     It  has  been 
tli()u<4it  that  if  executors  and  adminis- 
trators be  not  expressly  named  m  the 
c.nulition,  an  assignment  by  them  would 
not  create  a  forfeiture      Anon.  _Moor, 
21;  Seers  V.  Hind,  1  Ves.  J.  29.);  but 
the  mention  of  assigns  includes  admin- 
istrators,  for  they  are  assigns  m  law. 
Moore's  case,  Cro.  Eliz.  26.     Sec  Cox 
V.  Browne,  Ciia.  Rep.  170. 

A  general  condition  not  to  assign, 
inserted  in  a  lease,  to  a  man  -and  hts 
assi'rnsr  was  considered  in  btricklcy 
V  Butler,  Hob.  170,  to  be  void  for  repug- 
nancy, though  it  was  admitted  that  a 
condition  against  assignment  to  a  parti- 
cular person  would,  even  in  such  case 
be  'rood.  But  the  former  part  of  the 
above  doctrine  has  been  denied.  Dennis 
V.  Loring,IIard.427;andinVVetherall 

V  Geerincr,  12  Ves.  511,  the  Master  of 
the  Rolls  s^aid,  that  assigns  would  m  such 
a  case  be  taken  to  mean  such  assigns  as 
the  lessee  might  lawfully  have,  viz.,  by 
license,  and  that  there  was  no  repug- 

"""A^^ourt  of  equity  will  not  relieve 
acrainst  the  forfeiture  occasioned  by 
breach  of  a  covenant  not  to  assign,  for 
it  could  not  place  the  parties  in  statu 
quo :  and  besides,  such  a  forfeiture  must 
always  be  incurred  by  the  wiltul  ac  of 
the  Lsee,  and  cannot  be  the  resnt^f 
accident,  which  seems  to  be  the  true 
foundation  on.  which  equity  suppo^^ 
itselfwhen  relieving  againsorfuture.. 

HiU  V.  Barclay,  18  Ves.  63 ,  Lovat  v. 


80  smith'sleadingcasbs. 

Lord  Ranelagh,  3  V.  &  B.  31 ;  Davis  v.     dock's  Chancery  Prac.  2d  edit.  vol.  1,  p. 
Moreton,  2  Clia.  Ca.  127;    see  AJad-     31. 


In.  Dickey  v.  M'CuIlough,  2  W.  &  S.  100,  tlic  Supreme  Court  of  Penn- 
sylvania decided  in  accordance  with  Dumpor's  case,  that  when  a  party  once 
dispensed  with  a  condition,  he  could  not  enter  for  any  subsequent  breach  of 
the  same  condition  ;  though  perhaps  su-ch  breach  rnight  afford  ground  for  an 
action  of  covenant,  based  on  the  condition.  The  doctrine  of  this  case  was 
also  recognized  by  the  Supreme  Court  of  New  York,  in  Bleecker  v.  Smith, 
13  Wend.  530,  wiiere  it  was  however  decided,  that  it  only  applied  to  nega- 
tive con-ditions,  when  the  breach  could  be  consummated  by  a  single  act,. and 
not  to  those  of  an  affirniativc  character  where  the  default  might  extend  con- 
tinuously throughout  a  long  period  of  time.  The  opinion  was-also  expressed, 
that  in  order  to  destroy  a  condition,  tiicre  must  be  an  express  waiver,  by  a 
license  to  the  parly  on  whose  estate  it  is  attached  to  dispense  with  it;  and, 
thai  a  mere  waiver  of  the  forfeiture,  by  acceptance  of  rent,  although  after 
breach  of  d  condition  not  to  assign,  would  not  prevent  the  grantor -from 
availing  himself  of  another  forfeiture,  subsequently  incurred.  No  doubt  can 
be  entertained  that  such  fs  the  law  where  the  nature  of  the  obligation  which 
the  condition  imposes  is  clearly  continuous,  as  where  it  is  for  the  perform- 
ance of  a  continuing  covenant.  In  such  cases  a  receipt  of  rent,  or  any 
other  act  affirming  the  tenancy,  will  merely  waive  the  forfeiture  antece- 
dently incurred,  but  will  not  relieve  the  tenant  from  the  efTects  of  a  subse- 
quent failure  of  performance;  and  even  where  the  language  and  conduct  of 
the  landlord  have  amounted  to  a  license  of  the  breach,  it  will  at  the  utmost 
only  bind  him,  and  will  not  enure  as  an  estoppel  upon  a  subsequent  assignee 
of  the  reversion  ;  Doe  v.  Gladwin,  6  Q,.  B,  953.  • 

In  the  subsequent  case  of  Dakin  v.  Williams,  17  Wend.  447,  the  autho- 
rity of  Dumpor's  case  was  again  admitted,  but  it  v\-as  held  not  to  apply  to 
covenants,  which  were  determined  to  be  always  susceptible  of  apportion- 
ment by  the  act  of  the  parties. 

In  the  Pennsylvania  decision  of  Newman  v.  Rutter,  8  Watts,  51,  the  gene- 
ral principle  that  acceptance  of  rent,  or  any  other  recognition  of  a  subsisting 
tenancy,  will  amount  to  a  waiver  of  forfeiture  for  condition  broken,  Avas 
recognized  ;  and  in  Coon  v.Brickett,  2  New  Hampshire,  163, it  was  enforced, 
where  the  landlord  had  actually  entered  under  the  condition,  and  thus 
avoided  the  lease,  before  that  receipt  of  the  rent  which  was  construed  into  a 
waiver.  It  was  admitted  that  a  void  lease  could  not  have  been  made  good, 
by  a  subsequent  act,  had  the  words  of  the  forfeiture  been  absolute  ;  but  it 
was  held  that  as  they  were  not,  and  the  estate  having  been  merely  violable, 
retained  that  character  after  re-entry,  the  subsequent  acts  of  the  lessor,  could 
confirm  as  well  as  avoid  it.  This  decision  may  perhaps  be  questioned  ; 
and  it  may  be  doubted  whether  the  lessor  having  once  made  his  election  by 
actual  entry,  could  alter  it  by  any  subsequent  act.  But  in  the  recent  deci- 
sion of  Clark  v.  Jones,  1  Denis,  516,  it  was  broadly  declared  to  be  the  law, 
that  as  against  the  lessee  it  made  no  difference  whether  the  condition  merely 
rendered  the  lease  voidable  upon  breach,  or  were  of  complete  avoidance,  nor 
whether  it  were  attached  to  a  lease  for  life  or  merely  for  years.     In  cither 


dtjmpor'scase.  81 

case  it  was  held  that  the  landlord  by  affirming  might  continue  the  tenancy, 
and  that  the  tenant  could  not  set  up  his  own  wrong  for  the  purpose  of  get- 
ting rid  of  his  liabilities. 

The  decision  of  the  Supreme  Court  of  New  York  in  Jackson  v.  Allen,  3 
Cowen,  120,  declared  the  important  qualification  of  the  principle  we  are 
discussing,  that  to  make  the  receipt  of  rent  amount  to  the  waiver  of  a  for- 
feiture, the  rent  must  not  only  be  received,  but  have  accrued  subsequently 
to  the  time  of  condition  broken,  otherwise  the  transaction  amounts  to  no 
more  than  would  the  payment  of  any  other  debt.  It  was  farther  held  that 
if  the  breach  of  condition  were  of  a  continuous  character,  payment  and 
acceptance  of  rent  after  it  happened,  would  only  waive  the  forfeiture  pre- 
viously incurred,  and  that  a  subsequent  re-entry  on  the  ground  of  the  con- 
tinuance of  such  breach,  would  consequently  be  valid.  But  in  another 
decision,  in  the  same  volume  of  reports,  it  was  decided  that  although  rent 
which  has  become  due  before,  may  be  received  after  the  forfeiture  without 
creating  a  waiver,  such  is  not  the  case  with  a  distress  for  it  which  necessarily 
admits  the  continued  existence  of  the  tenancy ;  Jackson  v.  Sheldon,  5  Cowen, 
448.  And  in  the  recent  case  of  Atkins  v.  Chilson,  9  Metcalf,  52,  it  was 
held,  that  to  constitute  a  waiver  of  the  forfeiture  did  not  necessarily  require 
a  recognition  of  the  continvped  existence  of  the  tenancy,  but  that  any  act 
showing  an  intention  of"  waiver  would  be  sufficient.  It  was  therefore 
determined  where  a  lessor  had  entered  under  a  condition  for  the  faithful 
performance  of  the  covenants  in  the  lease,  and  given  notice  at  the  time  in 
writing,  that  his  entry  was  for  the  breach  of  a  covenant  against  alterations, 
that  although  he  might  have  been  silent  as  to  the  character  of  his  act,  he 
was  bound  by  the  declaration  which  he  had  volunteered  to  make,  and  could 
not  afterwards  abandon  the  ground  thus  taken,  and  set  up  against  the  tenant 
the  breach  of  another  covenant  for  repairs.  This  decision  in  making  the 
accompanying  or  subsequent  act  of  the  grantor  a  waiver  of  the  forfeiture 
even  where  he  actually  enters,  is  in  point  with  Coon  v.  Brickett  as  above 
cited,  but  it  may  be  questioned  how  far  any  parol  disclaimer  will  pre- 
vent the  law  from  referring  an  act  done  by  a  party,  to  the  only  and 
rightful  cause  upon  which  he  was  entitled  to  do  it;  Doe  v.  Woodroffe, 
10  M.  &  W.  608. 

In  the  cases  of  Jackson  v.  Brownson,  and  Jackson  v.  Schutz,  7  John- 
son, 227,  18  Johnson,  174,  the  distinction  was  taken  that  no  acts  of  the 
grantor  could  amount  to  a  waiver  of  a  forfeiture,  unless  he  were  conusant  of 
the  fects  by  which  the  forfeiture  was  incurred.  In  the  latter  case,  this 
principle  appears  to  have  been  carried  to  the  extent  of  affirming,  that  the 
knowledge  of  the  agent,  appointed  by  him  to  receive  his  rents,  was  not 
sufficient. 

Jackson  v.  Schutz  also  determined,  that  when  there  was  a  conveyance  in 
fee,  by  deed  conditioned  that  the  grantee  should  not  alien  the  land,  without 
the  license  of  the  grantor,  nor  without  offering  him  the  pre-emption,  and 
paving  one-tenth  of  the  purchase-money  if  such  license  was  obtained,  the 
condition  was  valid,  and  gave  a  right  of  entry  when  broken,  by  alienation 
without  offer  of  pre-emption,  payment  of  one-tenth  of  produce  of  sale,  and 
without  license  to  alien.  There  appeared  however  some  doubt  in  the  court, 
whether,  this  latter  part  of  the  condition  was  good  ;  and  whether,  had  it 
stood  alone,  any  remedy  would  have  been  given  for  the  breach ;  for  it 

Vol.  I.— 6 


82  SMITH 'SLEADINGCASES. 

was  said  that  a  condition  not  to  alien  without  hcense  of  the  grantor,  amounted 
very  nearly  to  a  condition  not  to  alien  at  all,  which  was  as  clearly  void, 
as  a  condition  not  to  alien  to  a  particular  person  or  class  of  persons 
was  good. 

In  M'Williams  v.  Nisly,  2  Sergeant  &  Rawle,  507,  it  was  held,  that 
although  a  perpetual  restraint  attempted  to  be  imposed  by  the  grantor  upon 
the  alienation  of  land  conveyed  by  him  m  fee  was  not  binding,  a  partial 
restraint,  whether  against  aliening  to  a  particular  person  or  for  a  definite 
time  was  good,  if  the  duration  of  the  restraint  did  not  extend  beyond  a  life 
or  lives  in  being.  In  the  case  before  the  court  the  restraint  was  imposed  in 
a  conveyance  passing  an  estate  in  fee,  subject,  among  others,  to  the  follow- 
ing restrictions ;  "that  the  grantee  is  not  to  sell  the  land  during  the  life  of 
the  grantor;  and  if  the  grantee  should  die  before  the  grantor,  then  he  is  to 
leave  the  lands  to  his  wife,  or  the  lawful  issue  of  her  body :  but  if  the 
grantor  should  die  before  the  grantee,  then  the  grantee  to  be  at  liberty  to  sell 
and  bequeath  as  he  chooses."  This  clause  was  held  to  create  neither  a 
condition  nor  a  conditional  limitation,  and  yet  so  to  qualify  the  estate  of  the 
grantee  as  to  deprive  him  of  the  right  to  sell  during  the  life  of  the  grantor. 
The  grantee  made  a  sale  during  the  life  of  the  grantor,  whom  he  survived, 
and  after  his  death  his  children,  heirs  at  law  gf  the  grantor,  brought  their 
ejectment  against  the  vendees.  The  court,  while  holding  that  there  was  no 
condition,  and  yet  that  the  sale  was  invalid,  also  determined,  that  as  the 
father  of  the  plaintitTs  acquired  before  his  death,  by  the  prior  decease  of  the 
grantor,  a  full  right  to  pass  the  property  in  question,  his  children  were 
estopped  bj-  his  deed,  though  made  when  he  had  no  such  right,  and  conse- 
quently that  they  could  not  recover  against  the  defendants  who  claimed 
under  it. 

It  would  appear  certain  that  the  restraining  clause  in  the  case  just  cited, 
if  valid  at  all,  could  only  have  been  so  as  a  condition,  since  the  operative 
words  in  the  deed  passed  the  whole  estate,  legal  and  equitable,  to  the  grantee. 
The  subsequent  case  of  Fisher  v.  Taylor,  2  Rawle,  33,  affords,  however,  an 
instance  of  a  mere  restraint  upon  the  enjoyment  of  property,  not  effected  by 
means  of  a  condition,  but  which  may  be  cited  with  the  previous  decision, 
to  indicate  how  far  the  law  of  Pennsylvania  will  suffer  such  restraints  to 
extend.  Money  was  devised  to  executors  for  the  purchase  of  land,  «  in 
trust  for  S.  T.,  the  said  S.  to  have  the  rents,  issues,  and  profits  thereof,  but 
the  same  not  to  be  liable  to  any  debts  which  may  be  contracted  by  the  said 
S.  T."  As  the  legal  title  was  here  vested  in  the  executors,  the  trust  being 
purely  executory,  while  S.  T.  took  an  equitable  estate  in  the  premises,  it 
would  seem  that  although  not  enforced  by  a  condition,  the  restraint  might 
be  good  merely  as  such,  if  not  contrary  to  the  policy  of  the  law.  The  court 
decided  that  it  was  good,  and  that  neither  the  legal  estate  of  the  executors, 
nor  the  equitable  interest  of  S.  T.  could  be  taken  in  execution  by  the  cred- 
itors of  the  latter.  As  S.  T.  might  undoubtedly  have  aliened  his  life  estate 
under  the  words  of  the  will  to  his  creditors  or  to  any  body  else,  the  estate 
thus  supported  by  the  decision  of  the  Supreme  Court  presented  the  anoma- 
lous character  of  liability  to  execution  after  alienation  by  the  owner  though 
not  before.  The  judgment  in  this  case  is  opposed  by  the  authority  of  the 
English  decisions  on  the  same  subject,  which  were  recognised  as  law  by 
the  Supreme  Court  of  Pennsylvania,  in  Hammersley  v.  Smith,  4  Wharton, 


DUMPO  R     S    CA  SE.  83 

128.  Fisher  v.  Taylor  has  however  been  since  fully  sustained  as  part  of 
the  law  in  that  state,  by  the  determination  of  the  same  tribunal,  in  Vaux  v. 
Parke,  7  W.  &  S.  19,  where  it  was  decided,  that  the  expressed  intent  of 
the  testator  to  that  effect  would  suffice  to  exempt  an  equitable  estate  given 
by  his  will  from  alienation  or  execution.  But  in  Massachusetts  where  the 
devise  was  of  the  use  of  my  farm  to  A.  not  subject  to  conveyance  or  attach- 
ment, the  restraint  was  held  to  be  void;  Blackstone  Bank  v.  Davis,  21 
Pick.  42.  And  although  it  was  decided  in  Russel  v.  Lewis,  2  Pick.  509, 
that  where  the  legal  estate  was  vested  in  trustees  the  interest  of  the  cestui 
que  trust  could  not  be  taken  in  execution,  the  case  went  on  the  familiar 
principle,  that  a  mere  equity  cannot  be  extended  at  common  law. 

The  Supreme  Court  of  Massachusetts,  in  Gray  v.  Blanchard,  8  Pick. 
284,  sustained  an  action  brought  to  recover  possession  of  an  estate  in  fee,  as 
forfeited  by  breach  of  a  condition  contained  in  the  original  conveyance  by 
the  plaintiff,  that  no  window  should  be  made  in  the  north  wall  of  a  house, 
part  of  the  premises  conveyed.  The  land  on  which  the  window  in  ques- 
tion looked,  and  which  belonged  to  the  grantor  at  the  time  of  condition  made, 
had  since  been  aliened,  but  the  right  to  take  advantage  of  the  condition, 
to  the  extent  of  regaining  an  absolute  fee  in  the  premises,  was  held  to  remain 
in  him  and  his  heirs,  and  to  be  well  exercised  against  the  alienee  from  the 
original  grantee,  and  a  mortgagee  under  him,  although  the  breach  occurred 
subsequently  to  the  mortgage,  and  was  the  act  of  the  mortgagor.  A  condi- 
tion, said  Parker,  C.  J.,  that  there  should  be  no  windows  in  any  part  of  the 
house  would  be  bad,  but  a  condition  not  to  have  windows  in  a  particular 
wall  is  good. 

In  Haydyn  v.  Stoughton,  5  Pick.  528,  the  same  principles  were  applied 
t9  an  estate  conditioned  for  the  erection  of  a  school-house ;  and  it  was  held 
to  be  absolutely  forfeited  by  a  failure  on  the  part  of  the  grantees,  during  the 
space  of  twenty  years,  to  erect  the  building.  As  the  grant  was  by  devise, 
the  court  held  that  the  residuary  devisees  were  entitled  to  take  advantage 
of  the  condition  and  not  the  heirs  at  law. 

In  the  subsequent  case  of  Simonds  v.  Simonds,  3  Metcalf,  562,  the 
validity  of  conditions  in  restraint  of  alienation  during  a  limited  period,  was 
recognized  by  the  same  tribunal,  who  held  that  on  a  devise  in  fee  to  one 
of  the  sons  of  the  testator,  a  condition  not  to  alien  during  the  life  of  the 
other  would  have  been  good,  although  it  Avas  determined,  that  such  was 
not  the  intent  of  the  proviso,  of  which  the  construction  was  before  the 
court. 

In  the  case  of  Taylor  v.  Mason,  9  Wheaton,  350,  it  was  held  by  the 
Supreme  Court  of  the  United  States,  that  a  condition  in  a  devise  of  a  rever- 
sion, after  a  previous  estate  for  life  given  by  the  same  will,  that  the  devisee 
should  "  take  an  oath  before  he  has  possession,  that  he  will  not  make  any 
change  in  the  will  of  the  devisor  relative  to  his  real  propertj^,"  was  repug- 
nant to  the  nature  of  the  estate,  and  void.  It  was,  however,  farther  held, 
that  the  possession  meant  was  an  actual  and  corporeal  possession,  and  not 
the  legal  vesting  of  the  estate  ;  and  that,  as  the  condition  must,  therefore,  be 
considered  as  subsequent,  not  precedent,  the  devisee  took,  in  consequence 
of  its  invalidity,  an  estate  absolute.  Had  the  condition,  although  void, 
been  precedent,  it  was  admitted  that  the  devise  could  not  have  taken 
effect. 


84  smith'sleadixgcases. 

A  condition  in  a  devise  in  fee,  that  the  devisees  should  inhabit  a  certain 
town  where  the  lands  lay,  was  decided  by  the  Supreme  Court  of  New 
York  to  be  void.  They  farther  decided  the  condition  to  be  subsequent, 
and  consequently  that  the  devisees  took  an  unconditional  fee.  Newkerk 
V.  Newkerk,  2  Caines,  345.  It  was  also  held  that,  even  if  valid  the  con- 
dition was  nugatory,  as  the  devisees  were  the  heirs  at  law,  and  consequently 
the  only  parties  entitled  to  take  advantage  of  a  breach.  Schermerhorn 
V.  Negus,  1  Denio.  448,  is  as  to  the  former  point  of  the  same  general 
effect. 

Agreeably  to  the  principles  of  the  common  law,  on  a  condition  of  re-entry 
for  non-payment  of  rent,  as  the  tenant,  to  save  the  condition,  is  only  obliged 
to  be  present  with  the  rent,  or  ready  for  payment,  at  the  Hiost  notorious 
place  on  the  land,  so  the  only  manner  in  which  the  lord  can  show  the 
commission  of  a  breach,  is  by  making  a  general  demand  of  the  rent  at  such 
place.     Coke  Lilt.  201,  b.  202,  a. 

It  must  be  understood,  that  this  demand  is  essential  to  complete  the  for- 
feiture, for  it  is  not  until  demand  and  non-payment  that  the  condition  is 
broken.  Of  course,  to  take  advantage  of  the  breach,  an  entr}',  either  con- 
structive or  real,  is  necessary  ;  but  there  does  not  appear  anything  either 
in  authority  or  principle  to  prevent  the  g-rantor  from  effecting  this  at  any 
subsequent  period,  although  it  may  be  presumed  that  the  entn,'  to  make  the 
demand  for  the  purpose  of  completing  the  breach  would,  in  most  cases, 
answer  also  as  an  entr}'  to  take  advantage  of  such  breach,  when  completed. 
Conditions  indeed,  however,  like  most  other  parts  of  common  assurances, 
may  be  moulded  by  the  agreement  of  the  parties  to  any  intent  not  incon- 
sistent with  the  policy  of  the  law  :  and  consequently  by  special  consent,  there 
may  be  re-entry  for  default  of  payment  of  rent  without  demand  of  tt. 
Dormer's  Case,  5  Coke,  41.  In  such  a  case  the  mere  failure  to  pay  with 
or  without  demand,  constitutes  the  breach,  and  of  course  a  subsequent 
entry  at  any  time  is  good  :  for  as  it  has  already  been  stated,  the  necessity 
for  coming  on  the  land  at  the  day,  arose  from  the  period  affixed  by  law,  not 
for  the  entry,  but  the  demand  ;  and  moreover,  as  the  entry  need  not  be  at  any 
particular  time,  the  constructive  enlrj  confessed  or  implied  by  an  ejectment 
will  be  as  effectual  as  though  the  grantor  had  actually  gone  upon  the  land 
in  person  or  by  an  agent.  This  doctrine  has  been  applied  in  England  in 
the  case  of  Goodright  v.  Cator,  2  Douglas,  477,  and  in  that  of  Doe  v.  Mas- 
ters, 2  Barnewall  &  Cresswell,.  490,  in  which  it  was  held,  that  where  there 
was  an  express  stipulation  that  the  lessor  might  enter  without  demand,  no 
demand  was  necessary.  In  the  former  case,  however,  Lord  Mansfield,  even 
while  holding  that  the  constructive  entry  implied  by  the  ejectment  was  suf- 
ficient, seemed  to  be  of  opinion,  that  an  actual  demand  would  be  necessary 
whenever  no  provision  was  made  to  the  contrary.  It  would  seem  thai  the 
same  necessity  for  an  actual  demand  exists  where  the  proviso  gives  the  right 
of  entry  in  case  the  rent  be  behind  for  a  certain  period  of  time  after  the 
day  wherein  it  falls  due  ;  or  where  the  lease  is  declared  to  become  abso- 
lutely void  in  case  of  non-payment  of  the  rent.  Coke  Lit.  202,  a.  ;  Clun's 
case,  10  Coke,  129.  Thus  w^here  a  proviso  was  conditioned  for  a  re-entry 
in  case  the  rent  were  behind  hand  for  thirty  days,  Lord  Kenyon  held,  that 
although  a  sufficient  entry  was  implied  by  the  confession  of  the  defendant 
in  ejectment,  yet  that  as  the  plaintiff  had  not  brought  his  case  within  the 


DUMPORSCASE.  85 

Statute  of  4  Geo.  II.  c.  28,  sec.  2,  he  must,  according  to  the  requisitions  of 
the  common  law,  prove  a  formal  demand  at  the  day.  Doe  v.  Wandlass,  7 
Term  Rep.  120.  Moreover,  in  a  case  on  this  side  of  the  Atlantic,  where 
the  condition  was,  that  if  the  rent  were  suffered  to  be  due  and  unpaid, 
"  the  indenture  and  the  estate  thereby  created  should  be  void,"  it  was  held 
that  the  grantor  should  not  be  entitled  to  recover  as  for  condition  broken, 
without  showing  a  formal  demand  of  the  precise  sum  due,  a  convenient 
time  before  sun-down  of  the  day,  at  which  the  rent  became  payable  b)'  the 
reservation.  Jackson  v.  Kipp,  3  Wendell,  231.  As  this  case  was  of  aa 
estate  for  years,  it  follows  that  the  entry  and  demand  at  the  day  are  neces- 
sary to  complete  the  forfeiture,  not  to  take  advantage  of  it ;  for  had  a  for- 
feiture been  incurred,  no  entry  would  have  been  necessary  to  revest  the  estate, 
the  condition  being  one  of  complete  avoidance,  and  attached  to  a  chattel 
interest.     Coke  Lit.  214,  b. 

It  thus  appears,  that  although  the  modern  decisions  have  been  removed 
from  the  landlord,  as  from  all  other  parties  proceeding  for  condition  broken 
the  burden  of  making  an  actual  entry,  to  take  advantage  of  a  breach  of 
condition,  by  holding  the  constructive  entry  implied  by  an  action  of  eject- 
ment sufficient  for  that  purpose  ;  even  where  the  estate  to  be  avoided  is  one 
of  freehold  ;  Doe  v.  Masters,  2  Barn.  &  Cress.  290  ;  Little  v.  Heaton,  2 
Lord  Raymond,  750  ;  Goodright  v.  Cator,  2  Douglas,  286  ;  Bear  v.  Whist- 
ler, 7  Watts,  149  ;  Jackson  v.  Crysler,  1  Johnson's  Cases,  126;  yet  that 
the  necessity  for  proving  a  strict  common  law  demand  both  as  to  time  and 
place  still  remains,  whenever  a  forfeiture  for  non  payment  of  rent  is  to  be 
established,  unless  where  dispensed  with  by  the  agreement  of  the  parties  ; 
Goodright  v.  Cator,  2  Lord  Raymond,  751,  in  margine  ;  Doe  v.  Wandlass, 
7  Term,  120  ;  M'Cormick  v.  Connel,  6  Sergeant  &  Rawle,  151  ;  and  even 
•where  the  condition  is  of  absolute  avoidance  and  attached  to  a  term  for 
years;  Jackson  v.  Kipp,  3  Wendell,  231.  As  to  what  will  amount  to  an 
agreement  of  this  sort,  there  may  be  some  difficulty  in  determining.  In  the 
English  cases  quoted  above,  the  agreement  to  waive  the  demand  is  express  ; 
but  it  is  possible,  that  where  the  condition  of  the  deed  is,  that  if  the  rent 
be  for  a  certain  number  of  daj-s  in  arrear,  the  grantor  may  avoid  the 
estate  b)^  notice,  the  parties  would  be  held  to  have  substituted,  by  consent, 
another  mode  of  completing  the  forfeiture  for  that  provided  b}'  the  common 
law,  in  the  case  of  an  ordinary  condition  of  re-entr)'. 

On  the  whole  we  may  conclude  from  the  cases  quoted  above,  that  the 
necessity  for  an  actual  entry  as  an  essential  part  of  any  remedy  to  take 
advantage  of  a  breach  of  condition  no  longer  exists,  and  that  the  confession 
of  entry  by  the  defendant,  which  is  implied  in  his  appearing  to  an  action 
of  ejectment,  will  be  sufficient  both  in  England  and  in  this  country, 
whether  the  estate  sought  to  be  recovered  be  for  years  or  of  freehold,  and 
whether  the  condition  be  of  absolute  avoidance  or  merel}-  for  a  re-entry. 

Of  course  under  this  construction  of  the  law,  as  far  as  the  grantor  and 
his  heirs  are  concerned,  all  conditiojas,  whether  of  absolute  avoidance  or 
merely  for  re-entry,  and  whether  attached  to  estates  for  life  or  years,  are 
put  upon  the  same  footing,  and  on  the  completion  of  the  breach,  are  capable, 
without  any  previous  formality,  of  being  taken  advantage  of  by  ejectment. 
But  as  no  right  of  action  to  recover  a  freehold  estate  vests  in  the  grantor  on 
breach  of  a  condition  until  entry,  and  the  action  of  ejectment,  is  merely 


86  smith's    LEADING    CASES. 

supported  as  implying  an  entry,  so  in  those  states  where  the  old  possessory 
action  by  writ  of  entry  is  alone  employed,  an  actual  entry  would  still  seem 
to  be  requisite.  Chalker  v.  Chalker,  1  Conn.  92.  In  all  such  cases,  how- 
ever, the  breach  must  be  complete  ;  and  hence  when  the  condition  is  for 
the  payment  of  rent,  an  actual  en^try  must  be  made  upon  the  land  at  the 
day  for  the  purpose  of  completing  the  forfeiture  by  demand,  although  such 
entry  is  not  requisite  to  take  advantage  of  the  forfeiture  when  so  com- 
pleted. .  And  this  entry  for  the  purpose  of  demanding  the  rent  will  more- 
over be  requisite,  even  where  the  condition  being  of  absolute  defeasance 
and  attached  to  an  estate  for  years,  would  not  have  required  an  entry  either 
real  or  construcitve  to  revest  it  in  the  grantor  ;  Jackson  v.  Kipp,  3  Wendell, 
231.-  This  necessity  for  a  demand  at  the  day,  which  in  Pennsylvania  and 
the  other  states  wanting  a  provision  corresponding  to  the  above  cited  statute 
of  George  II.,  must  throw  great  difficulties  in  the  way  of  taking  advantage 
of  a  condition  to  enforce  the  payment  of  rent,  may,  as  above  stated,  be  dis- 
pensed with  by  the  expressed  agreement  of  the  parties :  and  would  seem, 
in  the  opinion  of  Lord  Kenyon,  to  have  been  held  unnecessary,  whenever 
there  was  a  proviso  that  on  the  occurrence  of  rent  arrear  any  particular  act 
on  the  part  of  the  grantor  should  avoid  the  estate.  Doe  v.  Wandlass,  7 
Term,  120. 

As  the  action  of  ejectment  now  carries  with  itself,  by  a  fiction  of  law, 
proof  of  that  entry,  which  it  would  otherwise  be  actually  incumbent  on  the 
plaintiff,  suing  for  condition  broken,  to' make  before  action  brought,  it  follows 
that  it  cannot  be  maintained  on  a  condition  save  by  those  parties  who  would 
have  been  entitled  to  enter  for  the  breach.  At  common  law  this  could  never 
be  done  by  others  than  the  grantor  or  his  heirs,  save  where  the  entry  was 
not  requisite  to  avoid  the  estate,  and  was  only  employed  to  regain  posses- 
sion of  it.  If  the  estate  were  for  years,  and  conditioned  to  be  entirely  void 
on  the  occurrence  of  a  breach  ;  the  determination  of  the  term,  and  the  title 
of  the  reversioner  to  possession  were  complete,  without  entry,  as  soon  as  the 
breach  happened,  and  the  grantee  of  the  reversion  might  consequently 
enter,  not  to  defeat  the  estate  of  the  tenant,  which  was  already  gone,  but 
merely  to  take  possession  of  what  was  his  own  ;  Coke  Lit.  214  b. ;  Davy 
V.  Matthew,  Croke  Eliz.  G49.  Except  in  this  single  instance  of  a  condi- 
tion for  absolute  avoidance  attached  to  an  estate  for  years,  in  which  the 
benefit  of  the  condition,  passed  incidentally,  rather  than  the  condition  itself, 
in  no  case  could  the  assignee  of  a  grantor  pretend,  at  common  law,  to  take 
advantage  of  a  condition  reserved  by  deed  ;  Lit.  sect.  347  ;  Coke  Lit.  214 
a.  214,  b.  Although  some  dicta  are  to  be  found  supporting  the  idea,  that 
the  reversion  carried  with  it,  independently  of  statutory  enactment,  at  least 
the  implied  covenant,  arising  on  the  reddendum;  Harper  v.  Burgh,  2  Le- 
vinz,  206,  Sheppard's  Touchstone,  p.  120 ;  the  impossibility  of  passing 
either  to  the  assignee  of  land  or  of  a  reversion,  the  right  to  take  advantage 
of  a  condition,  appears  never  to  have  been  questioned.  By  the  passage  of 
the  statute  32  H.  8,  c.  34,  conditions-  attached  to  estates  for  life,  or  years, 
were  transferred  to  the  assignees  of  reversions,  who  were,  at  the  same 
time,  invested  vi^ith  all  covenants  made  by  or  with  their  assignors,  which 
were  capable  of  running  with  land.  By  analogy  to  the  constructive  restraint 
imposed  on  the  passage  of  covenants,  and  which  was  derived  from  the  pre- 
vious law  regulating  their  capacity  for  running  with  land,  it  has  been  held, 
that  the  assignee  cannot  take  advantage  of  conditions  merely  collateral. 


DUMPORSCASE.  87 

Coke  Lit.  315,  b.  It  has,  however,  been  determined,  that  a  conditioa 
reserving  to  the  lessor  the  right  of  determining  a  lease  for  twenty-one 
years,  at  the  end  of  seven,  is  not  collateral  to  the  estate,  and  may  be  taken 
advantage  of  by  the  assignee  of  the  reversion.  Roe  v.  Hayley,  12  East, 
466. 

Of  course,  after  the  grantor  of  an  estate  has  taken  advantage  of  a  con- 
dition, by  the  proper  means,  he  is  in  of  his  old  estate,  and  may  convey  it  to 
whom  he  pleases;  and  as  the  law  never  requires  a  party  to  enter  on  him- 
self, it  follows,  that  if  the  grantor  has  an  estate  in  possession  in  the  land,  at 
the  time  of  the  breach,  he  may  convey  immediately  thereafter  as  the  for- 
feiture will  be  complete,  without  entry  or  claim,  which  is  merely  a  substitute 
for  entry ;  Coke  Lit.  218,  b.  This  doctrine,  which  is  undeniably  law,  was 
recognised  and  applied  in  the  case  of  Hamilton  v.  Elliot,  5  Sergeant  & 
Rawle,  385.  In  New  Hampshire,  however,  it  has  been  decided,  that  even 
where  the  grantor  is  in  possession,  he  must  give  notice  of  his  intention  to 
take  advantage  of  the  forfeiture,  in  order  to  avoid  the  estate  ;  Willard  v. 
Henry,  2  N.  H.'s  Report,  120.  But  this  opinion  seems  to  have  gone  upon 
a  misapplication  of  the  law  relating  to  the  breach  of  a  condition  attached  to 
a  reversion,  where  the  grantor  had  no  possession,  to  the  case  of  a  condition 
attached  to  a  present  estate  and  broken  while  possession  was  in  him. 

It  is  important  to  observe  that  conditions  attached  to  estates  in  fee  or  tail, 
do  not  come  within  the  provisions  of  the  statute,  and  are  as  impossible  to  be 
assigned  now,  as  they  were  at  common  law. 

A  brief  examination  of  the  authorities  will  render  this  evident.  It  is  well 
known  that  since  the  passage  of  the  statute  of  Q.uia  Emptores,  there  has 
been  no  tenure  in  England,  between  the  grantee  of  an  estate  in  fee,  and  the 
grantor,  and  that  no  reversion,  or  possibility  of  reverter,  has  subsisted  in  the 
latter.  As  the  statute  of  32  Henry  8,  speaks  only  of  grantees  of  reversions, 
and  as  it  only  gives  the  capacity  for  transfer  to  conditions,  when  coupled 
with  reversions,  it  follows,  that  a  condition  reserved  on  the  grant  of  an  estate 
in  fee,  is  incapable  of  being  assigned  to  a  third  party,  so  as  to  give  him  the 
right  to  take  advantage  of  it,  either  by  entry  or  by  action  of  ejectment.  This  is 
the  more  obvious,  since  even  the  reversion  reserved  upon  a  grant  in  tail,  is  not 
within  the  meaning  of  the  statute,  which,  in  fact,  applies  only  to  conditions 
attached  to  estates  for  life  or  years  ;  Coke  Lit.  215,  a ;  Winter's  case.  Dyer, 
309,  a  ;  Lewes  v.  Ridge,  Croke  Eliz.  863. 

Although  the  point  has  never  been  directly  adjudged  in  Pennsylvania, 
the  general  opinion  of  the  profession  there  has  been,  that  the  assignees  of 
rents  reserved  on  conveyances  in  fee,  might  take  advantage  of  all  conditions, 
in  those  conveyances,  for  the  payment  of  the  rent,  or  the  performance  of 
any  other  act  not  collateral  to  the  estate  granted.  It  is,  however,  obvious, 
from  what  has  been  said,  that  such  a  right  is  not  capable  of  being  supported 
either  by  the  common  or  statute  law ;  and  that,  if  valid  at  all,  it  must  be  so 
merely  by  the  general  usage  of  the  state  in  question.  The  cases  of  Streaper 
v.  Fisher,  1  Rawle,  155,  and  St  Mary's  Church  v.  Miles,  1  Wharton,  229,. 
which  have  decided,  that  the  assignees  of  such  rents  may  bring  covenant 
against  the  tenant  of  the  land,  to  enforce  their  payment,  do  not  even  afford 
an  analogy  in  favour  of  their  right  to  take  advantage  of  a  condition ;  since 
there  are  several  dicta  to  be  found,  in  support  of  the  idea  that  the  covenant 
impUed  in  law  by  the  reddendum,  is,  independently  of  the  statute,  capable 


88  smith's    LEADING    CASES. 

of  assignment,  while  no  one  has  ever  asserted,  that  with  or  without  an 
assignment,  any  one,  save  the  grantor  or  his  heirs,  could  at  common  law, 
have  the  benefit  of  a  condition.  As  it  has  already  been  stated,  the  statute 
of  Henry  8th,  is  entirely  out  of  the  question,  both  as  to  covenants  and  con- 
ditions, except  where  there  has  been  an  assignment  of  a  reversion,  after  an 
estate  for  life  or  years. 

It  is  necessary  here  to  make  some  observations  on  the  case  of  Havergill 
V.  Hare,  Croke  Jac.  511,  which  has  sometimes  been  mistaken  as  an  autho- 
rity for  the  position,  that  a  condition  annexed  to  an  estate,  arising  under  the 
statute  of  uses,  may  be  assigned.  In  that  case,  a  rent-charge  in  fee  was. 
granted  out  of  land,  but  there  was  no  grant  or  conveyance  of  the  land  itself; 
and  thus,  no  condition  for  defeating  the  estate  in  the  land,  and  vesting  it  in 
the  tenant  of  the  rent  was  possible.  Litt.  sect.  349 ;  Browning  v.  Beston, 
Plowden,  133.  There  was,  liowever,  a  covenant  to  levy  a  fine  of  the  Innd, 
to  the  use,  that  upon  rent  arrear,  the  tenant  of  the  rent  and  his  assigns,  might 
enter  and  hold  the  land  until  satisfied.  An  assignment  being  made,  parcel 
of  the  rent  in  arrear,  and  a  fine  afterwards  levied*  one  of  the  questions  raised, 
was,  whether  the  contingent  springing  use,  arising  under  the  fine,  could, 
before  it  vested,  be  assigned.  This,  the  court  held  it  might,  as  it  was 
attached  to  the  rent  for  security,  though  not  otherwise.  It  may  perhaps  be 
questioned,  whether,  instead  of  passing  while  contingent,  by  the  assignment 
of  the  rent,  the  use  did  not  aiise  and  vest  in  the  assignee,  by  the  force  of 
the  fine,  and  by  virtue  of  the  descriptive  words  in  the  covenant,  leading  the 
use.  Be  this  as  it  may,  it  is  perfectly  evident,  as,  indeed,  all  the  justices 
held,  that  in  this  case  there  was  no  condition  whatever,  and,  consequently, 
that  the  decision  there  made  is  not  applicable  to  cases  arising  under 
conditions. 

It  was  a  rule  of  the  common  law,  that  an  estate  which  began  by  livery, 
required  some  act  equally  notorious  to  avoid  it ;  and,  consequently,  to  deter- 
mine an  estate  of  freehold,  even  after  condition  broken,  an  entry  was  neces- 
sary. This  was  equally  true,  even  where  the  estate  was  to  become  abso- 
lutely void  on  breach,  for  whatever  might  be  the  terms  of  the  condition,  the 
grantor  had  nothing  until  entry  made  ;  Coke  Lit.  215,  a.  It  might  be  sup- 
posed that  this  rule  would  have  been  inapplicable,  to  estates  arising  under 
the  statute  of  uses,  but  even  in  the  case  of  a  bargain  and  sale,  conditioned 
on  the  happening  of  a  certain  event  to  be  void,  the  estate  does  not  revest  in 
the  bargainor,  on  the  breach  of  the  condition,  without  entry.  Filzwilliam's 
case,  6  Coke,  34  ;  Coke  Lit.  218,  a.  It  may,  however,  be  presumed,  that 
in  conveyances  under  that  statute,  as  all  conveyances  necessarily  are,  which 
pass  a  freehold,  and  are  not  accompanied  by  livery  of  seisin,  it  may  be  pos- 
sible for  the  parties  to  provide  some  other  mode  of  avoiding  an  estate  of  free- 
hold, on  breach  of  condition,  than  that  of  re-entry.  It  is  very  certain  that 
in  such  conveyances,  no  entry  is  necessary  to  determine  the  previous  estate, 
where  there  is  a  limitation  over  on  condition  broken,  although  such  limita- 
tion would  have  been  bad  at  common  law.  The  act  by  which  a  power  of 
revocation  is  executed,  is  nothing  more,  when  unaccompanied  by  a  new 
declaration  of  uses,  than  the  performance  of  a  condition  to  avoid  an  estate, 
which  has  arisen  under  the  statute.  Sugden  on  Powers,  vol.  1,  227,  228  ;" 
Sheppard's  Touchstone,  by  Preston,  120  ;  Preston  on  Estates,  48.  And 
there  may  be  reason  for  believing  that  the  effect  of  such  a  power  is  to  revest 


dumpor'scase.  89 

the  estate  in  the  grantor,  without  the  necessity  of  an  entry ;  SugJen  on 
Powers,  vol.  2,  p.  33. 

A  power  of  revocation,  is  a  collateral  condition  to  avoid  an  estate  annexed 
to  the  person  or  will  of  the  holder  of  the  power,  and  is  well  reserved,  when, 
in  any  conveyance  to  uses,  it  is  declared  that  on  the  performance  of  an  act, 
or  the  delivery  or  execution  of  a  notice,  or  writing,  the  estate  granted  by  the 
conveyance  shall  become  void.  Sugden  on  Powers,  vol.  1,  226,  227.  231  ; 
Coke  Lit.  237,  a.  Such  conditions,"moreover,  will  take  effect  as  powers  of 
revocation,  as  well  in  bargains  and  sales,  or  covenants  to  stand  seised,  as  in 
conveyances  operating  by  transmutation  of  possession.  Sugden,  vol.  1, 160. 
It  would  seem,  therefore,  doubtful  whether  the  proviso  frequently  introduced 
into  deeds,  reserving  fee  farm,  or  ground-rents,  or  conveyances  of  estates  in 
fee  or  for  life,  that  if  the  rent  be  behind  for  a  certain  number  of  days,  the 
estate  shall  be  void  on  the  delivery  by  the  grantor  of  a  notice  in  writing, 
signifying  his  intention  to  determine  the  same,  does  not  amount,  of  necessity, 
to  a  valid  power  of  revocation,  and  as  such,  avoid  the  estate,  without  entry 
or  claim.  If  this  be  its  effect,  it  would  seem,  that  although  the  grantee  of 
such  a  rent,  before  the  forfeiture  of  the  estate  under  the  condition,  or  its 
avoidance  under  the  power,  (since  both  these  terms  are' applicable,)  cannot 
take  advantage  of  the  proviso,  either  as  condition  or  power  ;  yet,  that  after 
a  non-payment  of  the  rent,  and  delivery  of  the  notice  by  the  original  gra'ntor, 
a  subsequent  assignment  by  him  would  pass  to  the  grantee,  both  the  right  of 
property  and  the  right  of  immediate  possession. 

It  must,  however,  be  admitted,  that  Coke  is  express,  that  no  freehold 
estate,  even  when  created  under  the.  statute  of  uses,  shall  be  defeated  with- 
out entry  ;  and  that  there  does  not  seem  to  be  any  case  of  the  defeasance 
of  such  an  estate  by  a  power  of  revocation,  without  an  entry,  actual  or 
constructive,  save  where  there  has  been  a  limitation  over,  or  the  grantor 
has  been  in  possession.  Moreover,  the  cases  proceeding  upon  the  agree- 
ment of  the  parties,  and  excusing  the  entry  to  demand  rent  arrear,  and  so 
complete  a  forfeiture,  do  not  dispense  with  the  necessity  of  an  entry,  to 
take  advantage  of  it,  which,  either  actual  or  implied  by  an  ejectment,  has 
always  been  recognized.  All  that  we  can  do,  therefore,  is  to  determine, 
that  with  regard  to  the  necessity  for  entry,  powers  of  revocation,  and  con- 
ditions of  defeasance,  resting  in  the  will  and  act  of  the  grantor,  stand  on  the 
same  footing. 

When  it  is  said,  in  general  terms,  that  a  condition  cannot  be  taken 
advantage  of,  save  by  the  grantor  and  his  heirs,  and,  of  course,  that  it  is 
not  assignable,  two  very  distinct  points  of  law,  resting  on  different  reasons, 
are  involved  in  the  assertion.  Before  breach,  the  reason  why  an  assignee 
cannot  take  advantage  of  a  condition,  really  depends  upon  a  want  of 
capacity  for  transfer  of  the  condition  itself.  But  after  breach,  the  condition 
itself  is  gone,  and  there  arises  in  its  stead,  whatever  may  be  its  terms,  in 
the  case  of  freehold  estates,  at  all  events  where  created  by  common  law 
conveyances,  nothing  more  than  a  right  of  entry  in  the  grantor.  Now  this 
right  of  entry  is,  in  England,  as  little  capable  of  assignment,  as  the  condi- 
tion, since  both  by  common  law  and  the  statutes  of  maintainance,  its 
transfer  was  forbidden  ;  but  evidently  the  obstacles  to  its  assignment  rest 
on  different  grounds,  from  those  which  prevented  the  passage  of  the  condi- 
tion before  breach.     Lit.  sect.  214;  Coke  Lit.  214,  a.     But  in  Pennsyl- 


90  SMITHSLEADINGCASES. 

vania,  and  perhaps  in  some  of  the  other  states  of  this  county,  a  mere  right 
of  entry  may  be  assig'ned.  6  Binney,  421.  Where  this  is  the  case, 
there  would  seern  to  be  no  conclusive  reason  why,  after  breach  the  right 
of  entry,  which  takes  the  place  of  the  condition,  should  not  be  assigned, 
although  before  breach,  the  condition  itself  could  not  have  been  trans- 
ferred. 

It  must,  however,  be  observed,  that  there  is  a  deeply-seated  distinction 
between  the  rights  of  a  grantor  after  condition  broken,  and  the  common  right 
of  entry  in  a  parly,  against  whom  there  is  a  mere  naked  adverse  posses- 
sion, unaccompanied  either  by  the  right  of  propert)''  or  the  right  of  posses- 
sion. Both  these  rights  are,  in  such  a  case,  in  the  party  against  whom 
there  is  the  adverse  holding.  And  if  we  are  to  believe  with  Lord  Mans- 
field in  Taylor  v.  Horde,  1  Burrows,  60,  that  even  where  a  disseisin  now 
exists,  we  have  no  means  of  recognising  its  existence,  there  would  seem 
to  be  no  suflicient  reason  against  holding  with  the  Pennsylvania  courts,  that 
these  rights  create  a  constructive  legal  seisin,  suificient  to  enable  the 
statute  of  uses  to  operate.  There  is,  therefore,  some  colour  for  holding 
that  a  party  against  whom  there  is  a  mere  adverse  possession,  may,  where 
the  statutes  of  maintenance  are  not  in  force,  transfer  by  bargain  and  sale, 
or  lease  and  release,  all  his  rights  to  an  assignee.  But  in  the  case  of  breach 
of  a  condition,  even  in  absolute  defeasance  of  a  freehold  estate,  this  law  does 
not  apply.  Except  in  so  far  as  the  doctrine  of  powers,  already  referred 
to,  may  be  applicable,  not  merely  does  the  possession  of  the  tenant  of  the 
estate  continue  after  breach  and  before  entry,  but  it  continues  with  all  its 
incidents;  with  the  right  of  possession,  and  the  right  of  property.  Of 
course,  no  portion  of  these  rights  can  be  at  the  same  time  in  the  grantor. 
This  is  evident,  because  he  could  bring  no  action  requiring  a  right  of  pos- 
session or  a  right  of  property  for  its  support,  having  neither  a  writ  of  right 
nor  a  writ  of  entry.  Coke  Lit.  214,  b.  240,  a;  Chalker  v.  Chalker,  1 
Conn.  92.  From  this  absence  of  all  right  to  the  estate  before  entry  by  the 
grantor,  it  happened  that  a  descent  cast  did  not  toll  his  power  to  enter  ; 
since  if  it  had,  as  he  could  bring  no  action,  he  would  have  lost  all  remedy. 
In  fact,  strictly  speaking,  the  grantor  had  on  breach  of  the  condition,  a  title 
of  entry,  but  no  right  of  entry  nor  title  to  the  estate.  Lit.  sect.  391,  392  ; 
Coke  Lit.  240,  a ;  Gilbert  on  Tenures,  26.  Until,  therefore,  there  shall  be 
some  express  decision  in  Pennsylvania  to  that  effect,  even  if  there  be 
nothing  inconsistent  with  legal  principle  in  holding  that  a  party  having  a 
right  of  entry,  as  a  consequence  of  the  right  of  property  and  possession, 
may  be  considered  without  actual  entry,  as  having  a  sufficient  seisin  to 
convey  under  the  statute,  it  may  be  doubted  whether  according  to  the  law 
of  that  state,  the  title  of  entry,  subsisting  in  the  grantor  of  a  freehold  after 
condition  broken,  and  which  is  unaccompanied  either  by  the  right  of  pro- 
perty or  possession,  raises  a  legal  seisin  sufficient  to  support  a  conveyance 
either  at  common  law,  or  under  the  statute  of  uses. 

But  whatever  the  law  may  be  in  Pennsylvania,  as  to  this  point,  it 
Avould  seem  that  with  regard  to  the  incapacity  for  assignment  of  condi- 
tions before  breach,  there  is  no  reason  for  supposing  that  it  varies  from 
the  common  law  doctrine  held  in  the  rest  of  the  United  States  and  in 
England. 

The  doctrine  that  a  condition  uncoupled  with  words  of  limitation,  cannot 


dumpor'scase.  91 

be  taken  advantage  of,  save  by  the  grantor  or  his  heirs,  requires  to  be  re- 
ceived with  a  certain  degree  of  qualification,  arising  out  of  the  principles 
of  equity.  Under  those  principles,  a  condition  intended  for  the  benefit  of 
a  third  person,  will  often  be  regarded  as  a  trust,  and  be  enforced  in  his 
favour,  as  a  charge  upon  the  land,  or  upon  the  person  holding  the  land  to 
which  it  is  attached.  Thus,  in  many  cases  what  once  was  held,  perhaps 
even  in  equity,  a  mere  condition,  will  now  be  there  viewed  as  a  trust,  or 
power  coupled  with  a  trust ;  as  in  the  case  cited  by  Littleton,  sec.  383, 
where  lands  were  devised  to  an  executor  to  be  sold,  and  the  proceeds  dis- 
tributed for  the  good  of  the  testator's  soul,  and  on  neglect  to  sell,  and  an 
assize  of  novel  disseisin  brought  by  the  heir,  judgment  was  rendered  in  his 
favour,  as  for  breach  of  condition  in  law.  Here,  according  to  Coke,  the 
profits  taken  before  sale,  were  not  assets  in  the  hands  of  the  executor  for 
the  payment  of  debts,  although  such  payment  was  the  principal  object  of 
the  devise.  Coke  Lit.  236  a.  In  equity,  at  the  present  day,  if  not  then, 
a  devise,  even  with  express  words  of  condition  for  payment  of  debts,  would 
be  treated  as  raising  a  trust  for  creditors,  and  as  making  the  executor 
accountable  as  trustee,  for  whatever  he  received  from  the  land.  At  the 
same  time,  it  does  not  appear  that  this  equitable  right  in  the  parties  for 
whose  benefit  a  condition  is  designed,  affects  the  right  of  the  heir  to  enter 
for  condition  broken,  where  a  condition  undoubtedly  exists,  or  would  justify 
a  court  of  common  law  in  refusing  him  the  exercise  of  that  right ;  although 
after  he  had  availed  himself  of  it,  equity  would  no  doubt  follow  him  up, 
and  affect  him  with  the  trust.  In  the  New  York  case  of  Jackson  v.  Top- 
ping, 1  Wend.  388,  where  a  father  had  conveyed  lands  to  a  son,  upon  con- 
dition to  maintain  him  for  life,  and  to  pay  his  debts,  an  ejectment  by  another 
son  for  condition  broken,  was  supported,  although  the  breach  averred  was 
the  non-payment  of  a  debt  not  presented  for  discharge  till  after  the  decease 
of  the  father.  As  far  as  the  condition  then  subsisted,  it  would  seem  to  have 
been  solely  for  the  benefit  of  the  creditors  of  the  father,  and  although  gone 
in  law  by  the  breach  and  entry,  Ave  may  presume  that  it  would  have  been 
supported  in  equitj-,  as  a  trust  against  the  heir,  notwithstanding  his  recovery 
in  the  ejectment. 

Upon  a  devise  to  A.  for  life,  remainder  to  B.  in  fee,  upon  condition  that- 
if  the  rents  and  profits  were  not  sufficient  during  the  life  of  A.  for  his  sup- 
port, B.  should  supply  the  deficiency,  the  Supreme  Court  of  Massachusetts 
very  recently  decided,  that  the  remainder  devised  to  B.,  was  not  affected 
with  any  trust  in  favour  of  A.  He  had  refused  the  devise  of  the  remainder, 
which  was  consequently  held  to  have  descended  to  the  heirs  of  the  testator  ; 
and  the  court  were  of  opinion,  that  had  it  been  accepted,  the  right  to  enjoy 
it  for  condition  broken,  would  equally  have  remained  with  the  heirs,  and 
would  have  given  no  claim,  even  in  equity,  to  the  party  in  whose  favour 
the  condition  was  created.  Temple  v.  Nelson,  4  Metcalf,  586.  Had 
express  words  of  trust  for  the  support  of  A.  been  attached  to  the  devise  of 
the  inheritance  in  remainder  to  B.,  such  trust  would  certainly  have  been 
enforced  in  favour  of  A.'s  estate  on  his  death,  and  perhaps  by  a  sale  during 
his  life. 

The  estate  in  remainder  conveyed  in  this  case  by  the  devise,  vested  im- 
mediately in  interest,  upon  the  death  of  the  devisor  ;  and  therefore  the 


92  SMITH     SLEADINGCASES. 

condition  would  seem  to  have  been  subsequent,  allliough  necessarily  to  be 
performed  or  broken,  before  the  devisee  could  acquire  the  right  of  posses- 
sion. On  breach  before  possession  taken,  whether  before  the  death  of 
tenant  for  life  or  not,  the  remainder  to  which  the  condition  was  attached 
might,  however,  have  been  avoided  by  claim  on  the  land,  made  by  the 
heir-at-law,     Coke  Lit.  218,  a.;  Browning  v.  Beston,  Plowden,  133. 

H. 


[*22]  *$PENCER'S     CASE. 

PASCH.  25   ELIZ.— IN  THE  KING'S   BENCH. 

[reported,  3  coke,  16.] 

Covenants. — What  Covenants  run  with  the  Land. 

Spexcer  and  his  wife(«)  brought  an  action  of  covenant  against  Clark, 
assignee  to  J.  assignee  to  S.,  and  the  case  was  such :  Spencer  and  his  wife 
by  deed  indented  demised  a  house  and  certain  land  (in  the  right  of  his  wife) 
to  S.  for  term  of  twenty-one  years,  by  which  indenture  S.  covenanted  for 
him,  his  executors,  and  administrators,  with  the  plaintiffs,  that  he,  his  exec- 
utors, or  assigns,  would  build  a  brick  wall  upon  part  of  the  land  demised, 
&c.  S.  assigned  over  his  term  to  J.,  and  J.  to  the  defendant ;  and  for  not 
making  of  the  brick  wall  the  plaintiffbrought  the  action  of  covenant  against 
the  defendant  as  assignee  :  and  after  many  arguments  at  the  bar,  the  case 
was  excellently  argued  and  debated  by  the  justices  at  the  bench  :  and  in 
aihis  case  these  points  were  unanimously  resolved  by  Sir  Christopher  Wray, 
Chief  Justice,  Sir  Thomas  Gawdy,  and  the  whole  court.  And  many  dif- 
ferences taken  and  agreed  concerning  express  covenants  in  law,  and  which 
of  them  would  run  with  the  land,  and  which  of  them  are  collateral,  and  do 
not  go  with  the  land,  and  where  the  assignee  shall  be  bound  without  naming 
him,  and  where  not  ;  and  where  he  shall  not  be  bound,  although  he  be 
expressly  named,  and  where  noi.(b'] 

1.  When  the  covenant  extends  to  a  thing  in  esse,  parcel  of  the  demise, 
the  thing  to  be  done  by  force  of  the  covenant  is  quodammodo  annexed  and 
appurtenant  to  the  thing  demised,  and  shall  go  with  the  land,  and  shall 
bind  the  assignee, (c)  although  he  be  not  bound  by  express  words  :  but  when 

(a)  2  Bulstr.  281,  2R2.  Comberb.  64.  Carth.  178.  Skinner,  211.  297.  3  Wilson,  2  7 
Cro.  Jac.  450.  {h)  Moor,  159. 

(c)  Moor,  27.  399,  Cro.  El.  457.  552,  553.  1  Rol.  521,  522.  Pcstea,  24.  1  Sand.  239. 
Cr.  Jac.  125.  Cr.  Car.  222.  523.  1  Jones,  245.  1  Siderf.  157.  1  Anders.  82.  1  Show. 
284.     4  Mod.  80.     3  Lev.  326.    Salk.  185.  317. 


spencer's    CASE.  .  93 

the  covenant  extends  to  a  thincr  which  is  not  in  *beinof  at  the  time 
of  the  demise  m;ade,  it  cannot  be  appurtenant  or  annexed  to  the  L  '^^  J 
thing  which  hath  no  being:  as  if  the  lessee  covenants  to  repair  the  houses 
demised  to  him  during  the  term,  that  is  parcel  of  the  contract,  and  extends 
to  the  support  of  the  thing  demised,  and  therefore  is  quodammodo  annexed 
appurtenant  to  the  houses,  and  shall  bind  the  assignee  although  he  be  not 
bound  expressly  by  the  covenant :  but  in  the  case  at  bar,  the  covenant  con- 
cerns a  thing  which  was  not  in  esse  at  the  time  of  the. demise  made,(f^)  but 
to  be  newly  built  after,  and  therefore  shall  bind  the  covenantor,  his  execu- 
tors, or  administrators,  and  not  the  assignee,  for  the  law  will  not  annex  the 
covenant  to  a  thing  which  hath  no  being. 

■  2.  It  was  resolved  that  in  this  case,  if  the  lessee  had  covenanted  for  him 
and  his  assigns,{e)  that  they  would  make  a  new  wall  upon  some  part  of  the 
thing  demised,  that  forasmuch  as  it  is  to  be  done  upon  the  land  demised, 
that  it  should  bind  the  assignee  ;  for  although  the  covenant  doth  extend  to 
a  thing  to  be  newly  made,  yet  it  is  to  be  made  upon  the  thing  demised,  and 
the  assignee  is  to  take  the  benefit  of  it,  and  therefore' shall  bind  the  assignee 
by  express  words.  So  on  the  other  side,  if  a  warranty  be  made  by  one,  his 
heirs  and  assigns,  by  express  words,  the  assignee  shall  take  the  benefit  of 
it,  and  shall  have  a  (/)  Warrantia  Charta?,  F.  N.  B.  135,  &  9  E.  2  ;  Garr' 
de  Charters,  30,  36  E.  3  ;  Garr'  1,  4  H.  8  ;  Dyer,  1.  But  although  the 
covenant  be  for  him  and  his  assigns,  yet  if  the  thing  to  be  done  be  merely 
collateral  to  the  land,  and  doth  not  touch  or  concern  the  thing  demised  in 
any  sort,  there  the  assignee  shall  not  be  charged.  As  if  the  lessee  cove- 
nants for  him  and  his  assigns  to  build  a  house  upon  the  land  of  the  lessor 
Avhjch  is  no  parcel  of  the  demise,  or  to  pay  any  collateral  sum  to  the  lessor, 
or  to  a  stranger,  it  shall  not  bind  the  assignee,  because  it  is  merely  colla- 
teral, and  in  no  manner  touches  or  concerns  the  thing  that  was  demised,  or 
that  is  assigned  over;  and  therefore  in  such  case  the  assignee  of  the  thinw 
demised  cannot  be  charged  with  it,  no  more  than  any  other  stranger. 

3.  It  was  resolved,  if  a  man  leases(g-)  sheep  or  other  stock  of  cattle,  or 
any  other  personal  goods  for  any  time,  and  the  lessee  covenants  for  him  and 
his  assigns  at  the  end  of  the  time  to  deliver  the  like  cattle  or  goods  as  the 
*things  letten  were,  or  such  price  for  them  ;  and  the  lessee  assigns  r  *  .  t 
the  sheep  over,  this  covenant  shall  not  bind  the  assignee,  for  it  is  l-  J 

but  a  personal  contract,  and  wants  such(A)  privity  as  is  between  the  lessor 
and  lessee  and  bis  assigns  of  the  land  in  respect  of  the  reversion.  But  in 
the  case  of  a  lease  of  personal  goods  there  is  not  any  privity,  nor  any  rever- 
sion,(z)  but  merely  a  thing  in  action  in  the  personalty,  which  cannot  bind 
any  but  the  covenantor,(A-)  his  executors,  or  administrators,  who  represent 
him.  The  same  law,  if  a  man  demise  a  house  and  land  for  years,  with  a 
stock  or  sura  of  money,  rendering  rent(-|-)  and  the  lessee  covenants  for  him, 
his  executors,  administrators  and  assigns,  to  deliver  the  stock  or  sum  of 
money  at  the  end  of  the  term,  yet  the  assignee  shall  not  be  charged  Avith 

{d)  Cr.  El.  457.     Cr.  Car.  439.     Dyer,  14,  pi.  C9.     1  Anders.  82.     Moor,  159. 
(f)  Cr.  Car.  25.  188.     1  Jones,  223.     1  Rol.  Ron.  360.     Moor,  159.  399. 
(/)  F.  N.  B.  135,  d.    Co.  Lit.  384,  b. 

ig)  2  Jones,  152.     1  Leon.  43.     Swinb.  324,  'h)  Cr.  Car.  188. 

C«)  1  Leon.  43.  (k)  Swinb.  324. 


94  smith's  leading  cases. 

this  covenant ;  for  although  the  rent  reserved  was  increased  in  respect  of 
the  stock  or  sum,  yet  the  rent  did  not  issue  out  of  the  stock  or  sum,(/)  but 
out  of  the  land  only  ;  and  therefore  as  to  the  stock  or  sum  the  covenant  is 
personal,  and  shall  bind  the  covenantor,  his  executors  and  administrators, 
and  not  his  assignee.  And  it  is  not  cerrain  that  the  stock  or  sum  will  come 
to  the  assignee's  hands,  for  it  may  be  wasted,  or  otherwise  consumed  or 
destroyed  by  the  lessee,  and  therefore  the  law  cannot  determine,  at  the  time 
of  the  lease  made,  that  such  covenant  shall  bind  the  assignee. 

4.  It  was  resolved,  that  if  a  man  make  a  feoffment  by  this  word(7n)  dedi, 
which, iniples  a  warrranty,  the  assignee  of  the  feoflee  shall  not  vouch  ;  but 
if  a  man  make  a  lease  for  years  by  this  word  concessi,{7i'^  or  demist,  which 
implies  a  covenant,  if  the  assignee  of  the  lessee  be  evicted,  he  shall  have  a 
writ  of  covenant ;  for  the  lessee  and  his  assignee  hath  the  yearly  profits  of 
the  land,  which  shall  grow  by  his  labour  and  industry,  for  an  annual  rent ; 
and  therefore  it  is  reasonable,  when  he  hath  applied  his  labour,  and  employ- 
ed his  cost  upon  the  land,  and  be  evicted  (whereby  he  loses  all,)  that  he  shall 
take  such  benefit  of  the  demise  and  grant,  as  the  first  lessee  might,  and  the 
lessor  hath  no  other  prejudice  than  what  his  especial  contract  with  the  first 
lessee  hath  bound  him  to. 

5.  Tenant  by  the  courtesy,  or  any  other  who  comes  in  in  the  post, 
shall  not  vouch  (which  is  in  lieu  of  an  action.)  But  if(o)  a  ward  be 
granted  by   deed  to  a  woman  who  takes  husband,  and  the  woman  dies, 

^  -,  the  husband  shall  vouch  by  *force  of  this  word  grant,  although  he 
«-  ■^  comes  to  it  by  act  in  law.  So  if  a  man  demises  or  grants  land  to  a 
woman  for  years,  and  the  lessor  covenants  with  the  lessee  to  repair  the 
houses  during  the  term,  the  woman  marries  and  dies,  the  husband  shall  have 
an  action  of  covenant  as  well  on  the  covenant  in  law  on  these  words  (demise 
or  grant)  as  on  the  express  covenant.  The  same  law  is  of  tenant  by  statute- 
merchant  or  statute-staple  or  elegit  of  a  term,  and  he,  to  whom  a  lease  for 
years  is  sold  by  force  of  any  execution  shall  have  an  action  of  covenant  in 
such  a  case  as  a  thing  annexed  to  land,  although  they  come  to  the  term  by 
act  in  law  ;  as  if  a  man  grants  to  lessee  for  years,  that  he  shall  have  so  many 
estovers(/j)  as  will  serve  to  repair  his  house,  or  as  he  shall  burn  in  his  house, 
or  the  like,  during  the  term,  it  is  as  appurtenant  to  the  land,  and  shall  go 
with  it  as  a  thing  appurtenant,  into  whose  hands  soever  it  shall  come. 

6.  If  lessee  for  years  covenants  to  repair  the  houses  during  the  term,(5') 
it  shall  bind  all  others  as  a  thing  which  is  appurtenant,  and  goelh  with  the 
land  in  whose  hands  soever  the  term  shall  come,  as  well  those  who  come  to 
it  by  act  in  law,  as  by  the  act  of  the  party,  for  all  is  one  having  regard  to 
the  lessor.     And  if  the  law  should  not  be  such,  great  prejudice  might  accrue 

(t^;  See  Dean,  &c.  of  Windsor  v.  Gover,  2  Wms.  Saund.  301.  Gardiner  v.  Williamson, 
2  B.  &  Ad.  336.     Lord  Mountjoy's  case,  5  Co.  4.     Jewel's  case,  ib.  3. 

(/)  Kehv.  153,  b.  1  And.  4.  "Dyer,  56,  pi.  15,  16.  212,  pi.  37.  257.  38.  21  E.  4,  29,  a. 
3Bulst.  291.     9E.  4.  l,b. 

(m)  2  Inst.  275.  4  Co.  81,  a.    1  Co.  G,  b.    Co.  Lit.  384,  a.     Yelv.  139.    Perk.  sect.  124. 

(n)  4  Co.  81,  a.  Yelv.  139.  Co.  Lit.  384,  a.  Perk.  sect.  124.  Dal.  101.  Cr.  Jac.  73. 
2  Inst.  276.     F.  N.  B.  134,  h.     Hob,  12.     1  Vent.  44,     1  Roll.  521, 

(o)  2  Roll.  743.  (/))  5  Co.  24,  b.      F.  N.  B.  181,  n, 

(9)  5  Co.  16,  a,  b.  5  Co.  24,  b.  Cr.  Jac,  240.  309,  439,  1  Jones,  223,  Cr,  EI.  373. 
1  Sid.  157. 


SPENCERS    CASE. 


95 


to  him  ;  and  reason  requires  that  they,  who  shall  take  benefit  of  such  cove- 
nant when  the  lessor  makes  it  with  the  lessee,  should,  on  the  other  side,  be 
bound  by  the  like  covenants  when  the  lessee  makes  it  with  the  lessor. 

7.  It  was  resolved,  that  the  assignee(r)  of  the  assignee  should  have  an 
action  of  covenant.  So  of  the  executors  of  the  assignee  of  the  assignee  ;  so 
of  the  assio-nee  of  the  executors  or  administrators  of  every  assignee,  for  all 
are  comprised  within  this  word  {assignees,)  for  the  same  right  which  was 
in  the  testator,  or  intestate,  shall  go  to  his  executors  or  administrators  ;  as  if 
a  man  makes  a  warranty  to  one,  his  heirs  and  assigns,  the  assignee(s)  of  the 
assignee  shall  vouch,  and  so  shall  the  heirs  of  the  assignee  ;  the  same  law 
of  the  assignee  of  the  heirs  of  the  feoffee,  and  of  every  assignee.  So  fevery 
one  of  them  shall  have  a  writ  of  Warrantia  Chartas.  Vide  14  E.  3,  Garr. 
33  ;  38  E.  3,  21 ;  36  E.  3,  Garr.  1  ;  13  E.  1,  Garr.  93  ;  19  E.  2,  Garr. 
85,  &c.  For  the  same  right  which  was  in  the  ancestor  should  descend 
«to  the  heir  in  such  case  without  express  words  of  the  heirs  of  the  ^^g-j 
assignees.  , 

Observe,  reader,  your  old  books,  for  they  are  the  fountains  out  ot  which 
these  resolutions  issue  ;  but  perhaps  by  these  differences  the  fountains  them- 
selves will  be  made  more  clear  and  profitable  to  those  who  will  make  use  oi 
them.     For  example,(0  in  42  E.  3,  3,  the  case  is  ;  grandfather,  father,  and 
two  sons.    The  grandfather  was  seised  of  the  manor  of  D.,  whereof  a  chapel 
was  parcel ;  a  prior,  with  the  assent  of  his  convent,  by  deed  covenanted  for 
him  and  his  successors,  with  the  grandfather  and  his  heirs,  that  he  and  his 
convent  would  sing  all  the  week  in  his  chapel,  parcel  of  the  said  manor,  for  the 
lords  of  the  said  manor  and  his  servants,  &c.    The  grandfather  did  enfeoff  one 
of  the  manor  in  fee,  who  gave  it  the  younger  son  and  his  wife  in  tail ;  and 
it  was  adjudged,  that  the  tenants   in  tail,  ns{ii)  terretenants  (for  the  elder 
brother  was  heir,)  should  have  an  action  of  covenant  against  the  prior,  for  the 
covenant  is  to  do  a  thing  which  is  annexed  to  the   chapel,  which  is  withm 
the  manor,  and  so  annexed  to  the  manor,  as  it  is  there  said.     And  Finchden 
related,  that  he  had  seen  it  adjudged,  that  two(u)  coparceners  made  partition 
of  land,  and  one  did  covenant  with  the  other  to  acquit  him  of  suit,  which 
was  due,  and  that  coparcener  to  whom  the  covenant  was  made  did  ahen, 
and  the  suit  was  arrear  ;  and  the  feoffee  brought  a  writ  of  covenant  against 
the  coparcener  to  acquit  him  of  the  suit ;  and   the   writ  was  maintainable, 
notwithstanding  he  was  a  stranger  to  the  covenant,  because  the  acquittal  fell 
upon  the  land°;  but  if  such  covenant  were  m.ade  to  say  divine  service  in 
the(?i^)  chapel  of  another,  there  the  assignee  shall  not  have  an  action  of  cove- 
nant, because  the  chapel  doth  not  belong  to  the  covenantee,  as  it  is  adjudged 
in(.T)  2  H.  4.  6,  b.     But  there  it  is   agreed,  that  if  the  covenant  had  been 
with  the  lord  of  the  manor  of  D.  and  his  heirs,  lords  of  the  manor  of  D., 
and  inhabitants  therein,  the  covenant  shall  be  annexed  to  the   manor,  and 
there  the  terretenant  shall  have   the  action  of  covenant  without  privity  of 

(r)  1  Roll.  521.    1  Roll.  Rep.  81,  82.    2  Bulst.  281.     Owen,  151, 152. 

is)  Cr.  El.  534.    Co.  Lit.  384,  b.  ^     ,         ^  ,  o 

(0  Co.  Lit.  384,  a.     1  Rol.  520,  521.     Br.  Covenant,  5.     Statham,  Covenant,  J. 

(u)  Co.  Lit.  385,  a.     8  Co.  145,  a.  r     ,  t>  n  t>       ci 

(i>)  1  Roll.  521.  Co.  Lit.  384,  b.  385,  a.  42  E.  3,  3  b.  Br.  Covenant,  5.    1  Roll.  Rep.  bl. 

(IC)    1   Roll.  521.  _        T^    Tvr    T,    1Q1 

{x)  Co.  Lit.  385,  a.    Fitz.  Covenant,  13.    Br.  Covenant,  1  /.    F.  N.  B.  ISl,  a. 


96 


smith's  leading  cases. 


blood.  Vide  29  E.  3,  48,  and  30  E.  3.  14.  Simpkin  Simeon's  case,(y) 
where  the  case  was,  that  the  Lady  Bardolf  by  deed  granted  a  ward  to  a 
woman  who  married  Simpkin  Simeon,  against  whom  the  Q,ueen  brought  a 
^  ,  *vvrit  of  right  of  ward,  and  they  vouched  the  Lady  Bardolf,  and 
L  J  afterwards  the  wife  died,  by  which  the  chattel(z)  real  survived  to 
the  husband,  (and  resolved  that  the  writ  should  not  abate,)  the  vouchee 
appeared,  and  said,  what  have  you  to  bind  me  to  warranty  ?  The  husband 
showed,  how  that  the  lady  granted  to  his  wife,  before  marriage,  the  said 
ward  ;  the  vouchee  demanded  judgment  for  two  causes. 

1.  Because  no  word  of  warranty  was  in  the  deed;  as  to  that  it  was 
adjudged,  that  this  word(a)  {grant)  in  this  case*of  the  grant  of  a  ward  (being 
a  chattel  real,)  did  not  import  in  itself  a  warranty. 

2.  Because  the  husband  was  not  assignee  to  the  wife,  nor  privy.  As  to 
that  it  was  adjudged  that  he  should  vouch,  for  this  warrant}'  implied  in  the 
word  (^grant,)  is  in  case  of  a  chattel  real  so  annexed  to  the  land,  that  the 
husband  who  comes  to  it  by  act  in  law,  and  not  as  assignee  should  take 
benefit  from  it.  But  it  was  resolved  by  Wray,  Chief  Justice,  and  the  whole 
court,  that  this  word  [concessi  or  (lemi>ii,\  in  case  of(6)  freehold  or  inheritance, 
doth  not  import  any  warranty  ;  11  H.  6,  41,  ace'.  Vide  6  H,  4  ;  12  H.  4,  5  ; 
1  H.  5,  2  ;  25  H.  8  ;  Covenant  Br.  32  ;  28  H.  8  ;  Dyer,  28  ;  48  E.  3,  22  ; 
F.  N.  B.  145 ;  C.  146  &  181 ;  9  Eliz. ;  Dyer,  257  ;  26  H.  8,  3  ;  5  H.  7, 
18  ;  32  H.  6,  32  ;  22  H.  6,  51  ;  18  H.  3  ;  Covenant,  30  ;  Old  N.  B.  Cove- 
nant, 46  H.  3,  4  ;  38  E.  3,  24.  See  the  statute  of(c)  32  H.  8,  Cap.  34; 
which  act  was  resolved  to  extend  to  covenants  which  touch  or  concern  the 
thing  demised,  and  not  to  collateral  covenants. 


This  is  the  leading  case  referred  to 
upon  every  question  whether  a  particular 
covenant  does  or  does  not  run  with  par- 
ticular lands,  or  a  particular  reversion. 

A  covenant  is  said  to  run  with  land, 
when  either  the  liability  to  perform  it, 
or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  land.  A 
covenant  is  said  to  run  with  the  rever- 
sion when  either  the  liability  to  perform 
it,  or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  reversion. 

Questions  upon  this  branch  of  the 
law  generally  arise  between  the  lessor 
of  lands  or  his  assignee,  and  the  lessee 
thereof  or  his  assignee  ;  and    we    will. 


therefore,  briefly  consider  the  subject 
with  reference  to  persons  holding  those 
characters,  before  inquiring  into  it  with 
reference  to  persons  not  occupying  those 
relations  to  each  other. 

An  opinion  has  sometimes  been  inti- 
mated, that  there  were,  even  at  common 
law,  some  covenants  which  ran  with  the 
reversion.  The  authorities,  however, 
seem  to  preponderate  in  favour  of  the 
doctrine  of  Serjeant  Williams,  v.'ho,  in 
Thursby  v.  Plant,  1  Wms.  Saund.  240, 
*n.  3,  says  that  "  the  better  r  ^^a  i 
opinion  seems  to  be,  that  the  ^  ■' 
assignee  of  the  reversion  could  not  bring 
an  action  of  covenant  at  common  lav/." 


(y)  Co.  Lit.  384,  a.  2  Roll.  743,  744.  3  Bulst.  165.  Hob.  47.  1  Roll.  Rep.  81.  Cr. 
El.  436. 

(,z)  1  Roll.  345.    Co.  Lit.  351,  a.  (a)  Co.  Lit.  4S4,  a.  101,  b. 

(6)  Co.  Lit.  384,  a. 

(c)  Moor,  159.  Cr.  Jac.  523.  2  Bulst.  281,  282,  283.  1  Sand.  238,  239.  Cr.  Car.  25, 
222.     1  Anders.  82.    2  Jones,  152.    Owen,  152.    Stile,  316,  317.     Co.  Lit.  215,  a. 


SPENCERS    CASE. 


97 


And  the  cases  will  be  best  reconciled, 
and  the  whole  subject  rendered  far  more 
intelligible,  if  we  adopt  the  view  taken 
by  the  learned  and  eminent  personage 
who  has  since  edited  that  work,  vol.  1, 
240,  a,  n.  o,  viz.  "  that  at  common  law 
covenant's  run  with  the  land,  but  not 
with  the  reversion.  Therefore  the  assig- 
nee of  the  lessee  was  held  to  be  liable 
in  covenant  and  to  be  entitled  to  bring 
covenant,  but  the  assignee  of  the  lessor 
v/asnot." 

Such  being  the  state  of  the  common 
law,  St.  32  n.  8,  cap.  34,  after  reciting 
among  other  things,  "  that  by  tlie  com- 
mon law  no  stranger  to  any  covenant 
could  take  advantage  thereof,  but  only 
such  as  were  parties  or  privies  there- 
unto," proceeded  to  enact  "  that  all  per- 
sons and.  bodies  politic,  their  heirs,  suc- 
cessors, and  assigns,  having  any  gift  or 
grant  of  the  king  of  any  lands  or  other 
hereditaments,  or  of  any  reversion  in  the 
same,  which  belonged  to  any  of  the 
monasteries,  &c.,  dissolved,  or  by  any 
other  means  come  to  the  king's  hands, 
since  the  4th  day  of  February,  1535,  or 
which  at  any  time  before  the  passing  of 
this  act  belonged  to  any  other  person, 
and  after  came  to  the  hands  of  the  king, 
and  all  other  persons  being  grantees  or 
assignees  to  or  by  the  king,  or  to  or  by 
any  other  person  than  the  king,  and 
their  heirs,  executors,  successors,  and 
assigns,  shall  have  like  advantages 
against  the  lessees,  their  executors, 
administrators  and  assigns,  by  entry  for 
non-payment  of  the  rent,  or  for  doing 
waste  or  other  forfeiture,  and,  by  action 
only,  for  not  performingother  conditions, 
covenants,  or  agreements  expressed  in 
the  indentures  of  leases  and  grants 
against  the  said  lessees  and  grantees, 
their  executors,  administrators,  and  as- 
signees, as  the  said  lessors  and  grantors, 
their  heirs  or  successors  might  have 
had." 

Section  2  enacted,  "  that  all  lessees 
and  grantees  of  lands,  or  other  heredita- 
ments, for  terms  of  years,  life  or  lives, 
their  executors,  administrators,  or  assigns, 
shall  have  like  action  and  remedy  against 
all  persons  and  bodies  politic,  their  heirs, 
successors  and  assigns,  having  any  gift 
or  grant  of  the  king,  orof  any  other  per- 
sons, of  the  reversion  of  the  said  lands 
and  hereditaments  so  letten,  or  any  par- 
cel thereof,  for  any  condition  or  covenant 
expressed  in  the  indentures  of  their 
leases,  as  the  same  lessees  might  have 

Vol.  I 7 


had  against  the  said  lessors  and  grantors, 
their  heirs  and  successors." 

Although  the  words  of  this  act  are 
very  general,  and  taken  literally  would 
comprehend  every  covenant  expressed 
in  the  lease  ;  yet  it  is  settled,-  as  we  are 
informed  in  the  principal  case  ad  finem, 
that  it  extends  only  to  covenants  which 
touch  and  concern  the  thing  demised, 
and  not  to  collateral  covenants.  See 
also  Webb  v.  Russell,  3  T.  R.  402;  1 
Inst.  215,  b.  Shepp.  Touch.  176.  It  is 
also  settled  that  an  assignee  of  part  ol" 
the  reversion,  e.  g.  for  years,  is  an  assig- 
nee within  the  meaning  of  the  act,  1 
Inst,  215,  a.  Kidwelly  v.  Brand,  Plowd. 
72;  and  so  also  is  the  assignee  of  the 
reversion  in  part  of  the  land,  as  far  as 
covenants  are  concerned,  Twynara  v. 
Pickard,  2  B.  &  A.  105,  tlioughheisnot. 
so  for  the  purpose  of  availing  himself  of 
conditions,  for  they  cannot  be  apportion- 
ed by  the  act  of  the  party  ;  see  Dumpor's 
case,  ante,  and  the  notes  thereto ;  and 
see  Doe  d,  B.  de  Rutzen  v.  Lewis,  5  A. 
&  E.  277.  A  grantee  of  the  reversion 
in  copyhold  lands  is  an  assignee  within 
the  meaning  of  the  statute.  Glover  v. 
Cope,  3  Lev.  326  ;  Skinner,  305,  S.  C. ; 
Whitton  V.  Peacock,  3  Myl.  «fe  K.  325 ;. 
and  where  lands  were  devised  to  A.  for 
life,  remainder  to  B.  for  life,  with  power 
to  A.  to  make  leases,  and  A.  made  a  lease 
to  C.  and  died  during  the  term  demised, 
it  was  held  that  B.  should  sue  upon  the 
covenants.  Isherwood  v,  Oldknow,  3 
M.  &  S.  382.  See  too  Rogers  v.  Hum- 
phrey, 4  A.  &  E.  299.  .  "  The  question," 
said  Le  Blanc,  J.,  ^' is~^Is  the  plaintiff' 
an  assignee  !  He  is  the  person  next  m 
remainder  to  the  person  granting  the 
lease  :  true,  he  is  not  assignee  of  thc'; 
lessor,  he  is  assignee  of  the  devisor.  But 
I  take  it  to  be  clear  that  the  lease  must 
be  considered  as  emanating  from  the 
person  who  creates  the  power,  and  tha£ 
it  derives  its  force  and  authority  from 
him.  The  argument  is,  that  he  cannot 
have  this  action  because  he  must  be 
assignee  of  the  person  of  the  lessor  or 
grantor.  But  he  is  the  assignee  of  the 
person  who  in  the  eye  of  the  law  is  the 
lessor  ;  because  the  person  empowering 
the  tenant  for  life  to  grant  the  lease  is, 
in  the  eye  of  the  law,  *the  les-  .  ^.-^^  ■ 
sor.  The  doctrine  of  Lord  Coke  ^  -= 
in  Whitlock's  case,  entitles  the  court  to 
say  upon  principle  that  this  plaintifl' 
was  the  assignee  of  him  who,  in 
contemplation   of  law,   was  the  lessor. 


98 


smith's   leading   cases. 


and  that  as  such  he  is  entitled  to  this 
action." 

But  the  benefit  and  burden  of  cove- 
nants, therefore,  now  run  with  the  rever- 
sion from  assignee    to  assignee,  in  the 
same  manner  that  they  ran  at  common 
law  from   assignee   to  assig^nee  of  the 
land.     In  order,  however,  that  the  cove- 
nants may  continue   available    for  the 
benefit  of  the  reversioner,  he  must  con- 
tinue to  be  seised  or  possessed  of  the 
same  reversion  to  which  the  covenants 
are  incident;  for,  if  it  should  be  merged 
by  his  becoming  the  owner  of  some  other 
reversion  in  the  same  land,  the  covenants 
are  altogether  gone.    Thus  in  Moor,  94, 
a  person  made  a  lease  for  100  years,  the 
lessee  made  an  under-lease  for  20  years, 
rendering  rent,  with  a  clause  of  re-entry ; 
afterwards  the  original  lessor  granted 
the  reversion   in  fee,  and  the  grantee 
purchased  the  reversion  of  the  term.     It 
was  held  that  the  grantee  should  not 
have  either  the  rent  or  the  power  of  re- 
entry, for  the  reversion  of  the  term  to 
which  they   were  incident  was  extin- 
guished in  the  reversion  in  fee  ;  see  also 
Webb  v.  Russell,  3  T.  R.  402,  3.     One 
of  the  consequences  of  this  doctrine  was, 
that  when  lands  were  leased  with  a  sti- 
pulation  for   renewal,    and    the   lessee 
accepted  a  new  lease,  his  remedy  for 
rent  and  on  the  covenants  contained  in 
any  under-lease  he  might  have  made 
were  completely  gone,  since  the  rever- 
sion was  destroyed  to  which  they  were 
incident.     To  obviate  these  evils,  st.  4 
G.  2,  c.  28,  s.  6,  enacted,  that  in  case 
any  lease  shall  be  surrendered,  in  order 
to  be  renewed,  the  new  lease  shall  be  as 
valid,  to  all  intents,  as  if  the  under-leases 
had  been   likewise   surrendered  before 
the  taking  of  the  new  lease ;  and  that 
the  remedies  of  the  lessees  against  their 
under-tenants    shall   remain  unaltered, 
and   the  chief  landlord  shall  have  the 
same  remedy  by  distress  and  entry  for 
the  rents  and  duties  reserved  in  the  new 
lease,  so  far  as  the  same  exceed  not  the 
rents  and  duties  reserved  in  the  former 
lease,  as  he  would  have  had'in  case  such 
former  lease  had  been  still  continued. 
See  on   the  construction  of  this  latter 
provision  Doe  d.  Palk  v.  Marchetti,  1  B. 
&  Ad.  715.     Note  that  in  Aleyn  39  it  is 
said  that  a  covenant  is  not  a  duty. 

Let  us  now  see  what  covenants  have 
been  decided  to  relate  to,  or,  in  the  words 
of  the  text,  touch  and  concern,  the  land, 
in  such  a  way  that  their  benefit  or  bur- 
den is  capable  of  running  with  it.    On 


this  subject  it  may  be  laid  down  as  a 
general  rule,  that  all  imjdied  covenants 
run  with  the  land.  Thus  it  was  resolved 
in  Spencer's  case,  4tli  resolution,  "  that 
if  a  man  makes  a  lease  for  years  by  the 
word  concessi  or  demisi,  which  implies 
a  warranty,  if  the  assignee  of  the  lessee 
be  evicted  he  shall  have  a  writ  of  cove- 
nant." Whether  a  particular  express 
covenant  sufficiently  "  touches  and  con- 
cerns the  thinff  demised,"  to  be  capable 
of  running  with  the  land,  is  not  unfre- 
quently  a  question  of  difficulty.  The 
following,  however,  certainly  do  so.  For 
quiet  enjoyment,  Noke  v.  Awder,  Cro. 
Eliz.  436 ;  Campbell  v.  Lewis,  3  B.  & 

A.  392.  Further  assurance.  Middle- 
more  V.  Goodale,  Cro.  Car.  .503 ;  Rene- 
wal, Roe  V.  Hayley,  12  East,  464.  To 
repair.  Dean  and  Chapter  of  Windsor's 
case,  5  Rep.  24,  and  the  principal  case. 
To  discharge  the  lessor,  de  omnibus 
oneribus  ordinariis  et  extraordinariis, 
Dean  and  Chapter  of  Windsor's  case,  5 
Rep.  25.  To  permit  the  lessor  to  have 
free  passage  to  two  rooms  excepted  in 
the  demise.  Cole's  case,  1  Sal,  196,  re- 
ported as  Bush  V.  Calcs,  1  Show,  389 ; 
Carth.  232.  To  cultivate  the  land  de- 
mised in  a  particular  manner,  Cockson 
v.  Cock,  Cro.  Jac.  125,  To  reside  on 
the  premises.  Mayor  of  Congleton  v. 
Pattison,  10  East,  136.  Not  to  carry  on 
a  particular  trade,  Tatem  v.  Chaplin,  2 
H.  Bl.  133.  A  covenant  to  keep  build- 
ings within  the  bills  of  mortality  insured 
against  fire  was  in  Vernon  v.  Smith,  5 

B.  &.  A.  1,  held,  to  run  with  the  land, 
for  St.  14  G.  3,  c.  78,  enables  the  land- 
lord to  have  the  sum  insured  employed 
in  reinstating  the  premises,  so  that  the 
covenant  witii  the  aid  of  the  statute, 
amounts  to  a  covenant  to  repair.  la 
Vyvyan  v,  Arthur,  IB.  &  C.  415,  the 
lessee  covenanted  to  grind  at  the  lessor's 
mill,  called  Tregamare  Mill,  all  such 
corn  as  should  grow  on  the  close  demised. 
This  covenant  was,  in  an  action  brought 
by  the  devisee  of  the  lessor  against  the 
administratrix  of  the  ^lessee,  r  ^qn -i 
held  to  run  with  the  land,  at  all  l-  -• 
events  so  long  as  the  mill  remained  the 
property  of  the  reversioner.  In  Easterby 
V.  Sampson,  9  B.  &  C.  505,  and  6  Bing. 
644,  where  an  undivided  third  part  of 
certain  mines  was  leased ;  and  the  lease 
contained  a  covenant  by  the  lessee  that 
he  a7id  his  assig7is  should  build  a  new 
smelting  mill,  and  keep  it  in  repair  for 
working  the  mines  ;  this  covenant  was 
held,  first  by  the  King's  Bench,  and. 


SPENCERS    CASE. 


afterward  in  the  Exchequer  Chamber,  to 
run  with  the  lands. 

The  liability  of  the  lessee  to  be  sued 
on  his  express  covenants,  is  not  deter- 
mined by  his  assigning  over  his  term, 
and  the  lessor's  acceptance  of  his  assig- 
nee. Barnard  v.  Godscall,  Cro.  Jac.  309 ; 
Thursby  v.  Plant,  1  Wm.  Saund.  240, 
et  notas  ;  but  he  may  be  sued  on  them 
either  by  the  lessor  or  his  assignee  ; 
Bret  V.  Cumberland,  Cro.  Jac.  521,  2 ; 
and  so  may  his  personal  representative 
having  assets,  Hellier  v.  Casbard,  1  Sid. 
2GG,  1  Lev.  127;  Coghill  v.  Freelove, 
3  Mod.  325,  2  Vent.  209;  Pitcher  v. 
Tovey,  4  Mod.  76,  and  the  notes  to 
Thursby  v.  Plant,  1  Wms.  Saund.  241. 
But  though  the  lessee  may,  after  he  has 
assigned  and  his  assignee  has  been  ac- 
cepted, be  sued  on  his  express  cove- 
nants, it  is  said  he  cannot  be  so  on  his 
implied  ones.  Batcheleur  v.  Gage,  1 
Sid.  447;  Sir  W.Jones,  223;  see  Mills 
V.  Auriol,  4  T.  R.  93,  1  Wms.  Saund. 
241,  in  nolis,  Sed  quaere  de  hoc.  Nor 
will  any  action  of  covenant  lie  against 
the  assignee  of  the  lessee,  except  for 
breaches  of  covenant  happening  while 
he  is  assignee,  and  therefore  an  assignee 
may  get  rid  of  his  future  liability  by  as- 
si<)fning  even  to  a  mere  pauper.  Taylor 
v.'Shum,  1  B.  &  P.  21 ;  Le  Keux  v. 
Nash,  Str.  1222;  Odell  v.  Wake,  3 
Camp.  394 ;  Onslow  v.  Corrie,  2  Madd. 
330;  though  not  of  his  liability  for 
breaches  already  committed  during  the 
continuance  of  iiis  interest.  Harley  v. 
King,  5  Tyrwh.  692. 

Next  as  to  covenants  running  with 
the  lands  in  other  cases  than  those  be- 
tween landlord  and  tenant.  These  may 
be  divided  into  the  two  following  clas- 
ses : — 

1.  Covenants  made  with  the  owner  of 
the  land  to  which  they  relate. 

2.  Covenants  made  by  tlie  owner  of 
the  land  to  which  they  relate. 

With  respect  to  the  former  of  these 
classes,  viz.  covenants  made  with  the 
owner  of  the  land  to  which  they  relate, 
there  seems  to  be  no  doubt  that  the  bene- 
fit, i.  e.  the  right  to  sue  on  such  cove- 
nants, runs  with  the  land  to  each  suc- 
cessive transferee  of  it,  provided  that 
such  transferee  be  m  of  the  same  estate 
as  the  original  covenantee  was.  Of  this 
description  are  the  ordinary  covenants 
for  title  ;  see  Middlemore  v.  Goodale,  1 
Roll's  Ab.  521;  K.  PI.  6;  Cro.  Car. 
503,  505 ;  Sir  W.  Jones,  406 ;  Shepp. 
Touch.  171 ;  Campbell  v.  Lewis,  3  B. 


&  A.  392  ;  Lewis  v.  Campbell,  8  Taunt 
715,  which  latter  case,  as  well  as  Noko 
V.  Awder,  Cro,  Eliz.  373,  436,  shows 
that  there  is  no  difference  between  the 
right  of  an  assignee  of  freehold,  and  that 
of  the  assignee  of  a  chattel  real,  to  sue 
on  covenants  running  with  the  land. 
Of  this  description  also  is  the  case  of  the 
Prior  reported  in  the  text,  that  of  the 
two  Coparceners,  and  the  anonymous 
case  in  Moor,  179,  cited  by  Littledale, 
arguendo,  in  Milnes  v.  Branch,  5  M,  & 
S.  417. 

In  all  these  cases  the  covenant  is  for 
something  relating  to  the  land,  and  the 
assignee  of  the  land  is  the  person  enti- 
tled to  sue  upon  it.  See  Middlemore  v. 
Goodale,  1  Roll.  Abr.  521 ;  Spencer  v. 
Boyes,  4  Ves.  370. 

When  such  a  covenant  is  made,  it 
seems  to  be  of  no  consequence,  whether 
the  covenantor  be  the  person  who  con- 
veyed the  land  to  the  covenantee,  or  be 
a  mere  stranger.  Thus  in  the  Prior's 
case,  reported  in  the  text,  and  in  Co. 
Litt.  384,  b,  the  Prior  was  a  stranger  to 
the  land  of  the  covenantee  ;  and  there 
is  a  good  reason  for  this  assigned  in  the 
above  passage  in  Co.  Litt.,  where  the 
law  is  said  to  be  so,  to  give  damages  to 
the  party  grieved ;  in  other  words,  in 
order  that  the  person  who  is  injured  by 
the  non-performance  of  the  covenant, 
who  is  always  the  owner  of  the  land  pro 
tempore,  may  be  also  the  person  entitled 
to  the  remedy  upon  it  by  action.  In- 
deed Middlemore  v.  Goodale,  Noke  v. 
Awder,  and  Campbell  v.  Lewis,  above 
cited,  were  all  cases  in  which  the  cove- 
nantor was  also  the  person  who  convey- 
ed the  land  to  the  covenantee ;  and  Sir 
Edward  Sugden,  in  the  Law  of  Vendors 
and  Purchasers,  expresses  an  opinion, 
that  to  enable  the  assignee  of  land  to 
take  advantage  of  covenants  they  must 
have  been  entered  into  by  a  prior  owner 
thereof.  This  however  is  contrary  to 
the  Prior's  case  in  the  text,  contrary  to 
the  case  of  the  Coparceners,  contrary 
also  *to  the  anonymous  case  in  r  ;^n,  -, 
Moor,  179,  and  to  the  opinion  ■-  ^ 
of  the  Real  Property  Commissioners, 
expressed  in  their  3rd  report;  and  Sir 
Edward  Sugden  himself  declares  that 
the  consequences  of  applying  such  a 
doctrine  to  covenants  entered  into  by  a 
vendor,  who  is  often  only  a  mortgagor, 
or  cestuy  que  trust,  would  be  most  alarm- 
ing. See  a  learned  note  in  "  Jarmati's 
Bythewood,"  vol.  7,  pages  572,  3. 

It  would  be  wrong  to  omit  mentioning 


100 


SMITHS    LEADING    CASES. 


that,  since  the  publication  of  the  first 
edition  of  this  work,  a  case  has  occurred 
in  the  Court  of  Exchequer,  bearing  in 
some  degree  upon  the  above  proposition. 
I  allude  to  Raymond  v.  Filch,  5  Tyrwh. 
985,  in  which  the  question  was,  whe- 
ther the  executors  of  one  who  had  demi- 
sed land,  excepting  the  trees,  [The 
circumstance  that  the  trees  were  ex- 
cepted does  not  appear  in  the  statement 
of  the  case,  but  it  is  to  be  collected  from 
the  observations  of  the  counsel  and 
judges.  See  page  991  ad  fincm,  and 
the  judgment,]  could  sue  upon  a  cove- 
nant not  to  fell  or  lop  them,  which  had 
been  broken  during  the  testator's  life- 
time. It  was  argued  on  behalf  of  the 
defendant,  that  where  a  covenant  runs 
with  the  land  and  descends  to  the  heir, 
there,  though  there  may  have  been  a 
formal  breach  in  the  testator's  lifetime, 
still,  if  the  substantial  damage  hajjpen- 
ed  after  his  death,  the  real,  not  the  per- 
sonal, representative  ought  to  be  plain- 
tiff. See  Kingdom  v.  Nottle,  1  M.  & 
S.  355 ;  4  M.  &  S.  53 ;  King  v.  Jones, 
5  Taunt.  418.  Lord  Abinger,  however, 
delivering  the  judgment  of  the  court, 
distinguished  those  cases  by  saying, 
"  There  is  no  doubt  that  the  covenant 
here  is  purely  collateral  and  does  not 
run  with  the  land  ;"  and  he  added,  *'  for 
the  breach  of  such  a  covenant  after  the 
death  of  the  covenantee,  the  heir  or  de- 
visee of  the  land  on  which  the  trees 
grew  could  not  sue."  His  Lordship 
does  not  state  whether  he  based  this 
opinion  on  the  ground  that  the  covenant 
not  to  cut  down  the  trees  did  not  suffi- 
ciently touch  and  concern  the  land,  or 
whether,  on  the  ground  that  the  benefit 
of  a  covenant  made  by  a  stranger, 
(which  the  lessee  was  quoad  the  trees) 
was  incapable  of  running  with  the  land 
to  which  it  related,  to  the  heir  or  devisee 
thereof.  The  point  was  not  necessary 
for  the  decision  of  the  case  before  their 
lordships,  for  the  court  appears  to  have 
been  of  opinion  that  the  loss  of  the  shade 
and  casual  profits  of  the  trees  .during 
the  testator's  lifetime  w^as  a  sufficient 
injury  to  the  personal  estate  to  vest  a 
right  of  action  in  his  executor ;  and  it 
seems  unfortunate,  therefore,  that  the 
dicta  in  the  case  should  have  tended  to 
cast  any  additional  doubt  on  a  doctrine 
so  Iiighly  reasonable  as  that  the  right  of 
action  upon  a  covenant  touching  and 
benefiting  the  land,  shall  devolve  along 
with  the  land  itself  to  each  successive 


But  thougli  it  be  not  necessary  that 
the  covenan/or  should  be  in  anywise 
connected  with  the  land,  it  is  absolutely 
essential  that  the  covenantee  should,  at 
the  time  of  the  making  of  the  covenant, 
have  the  land  to  which  it  relates.  On 
this  point  the  text  is  express,  viz.,  "If 
the  covenant  were  to  say  divine  service 
in  the  chapel  oi^nother,  there  the  as- 
signee shall  not  have  an  action  of  cove- 
nant, because  the  chapel  doth  not  be- 
long to  the  covenantee ;  as  it  is  adjudg- 
ed in  2  H.  4,  6,  b."  ;  see  Co.  Litt.  384, 
b.,  385,  a.;  see  Webb  v.  Russell,  3  T. 
R.  893.  In  such  a  case,  however,  the 
covenantee  may  sue  though  his  assignee 
cannot.  Stokes  v.  Russell,  3  T.  R. 
678. 

It  has  been  above  stated,  that,  in  or- 
der that  the  assignee  may  sue  on  such 
a  covenant,  he  must  be  in  of  the  same 
estate  in  tlie  land  which  the  party  had 
with  whom  the  covenant  was  originally 
made,  for  the  covenant  is  incident  to 
that  estate.  This  rule  might  possibly 
be  productive  of  very  serious  and  disa- 
greeable consequences;  for  when  lands 
are  conveyed  (as  has  repeatedly  been 
done  for  the  purpose  of  barring  dower,) 
to  such  uses  as  A.  shall  appoint,  and  in 
default  of  appointment  to  A.  for  life 
remainder  to  B.,  his  executors  and  ad- 
ministrators, during  the  life  of  A.,  re- 
mainder to  A.  in  fee,  and  A.  exercises 
the  power  of  appointment  in  favour  of  a 
purchaser,  that  purchaser  comes  in 
paramount  to  A.,  and  above  the  estate 
of  which  he  was  seised,  which  is  defeat- 
ed by  the  exercise  of  the  power  as  if  it' 
never  had  existed.  There  is  conse- 
quently no  sameness  of  estate  between 
A.  and  the  purchaser,  which  latter  will 
therefore  not  be  entitled  to  the  benefit 
of  covenants  entered  into  with  A.,  since 
those  covenants  were  incident  to  the 
estate  which  has  now  been  defeated  by 
the  appointment;  see  Roach  v.  Wad- 
hain,  6  East,  289.  To  obviate  this  evil, 
it  is  now  usual-,  whenever  the  convey- 
ance transfers  a  seisin  to  serve  uses,  as 
for  instance,  when  it  is  by  way  of  feoff- 
ment, or  lease  and  release,  to  enter  into 
the  covenants  with  the  feoflcc,  or  re- 
leasee to  uses,  and  his  heirs,  the  conse- 
quence of  which  is  believed  to  be  that 
the  benefit  of  the  covenants,  being  an- 
nexed to  the  seisin,  is  transferred  to,  and 
in  a  manner  executed  in,  the  various 
persons  who  become  from  time  to  time 
entitled  under  the  uses  which  that  sei- 
sin serves.   See  Sugd.  Gilb.  U.  186,  note. 


SPENCERS     CASE. 


101 


With  respect  to   the  second  of  the 
above  two   classes,  namely,   covenants 
entered  into  by  the  owners  of  land,  great 
doubt  exists  whether  these  in  any  case 
run  with  the  lands,  so  as  to  bind  the  as- 
signees of  the  covenantor.     One  incon- 
venience which  would  be  the  result  of 
holding  them  to  do  so  is,  that  the  assig- 
nes  would  frequently  find  himself  liable 
to   contracts  of  the  very  existence   of 
which  he  was  ignorant,  and  which  per- 
haps would  have  deterred  him  from  ac- 
cepting a  conveyance  of  the  land,  if  he 
had  known  of  them  ;    and   the  reason 
assigned  in  the  first  Institute  for  allow- 
ing the  benefit  of  a  covenant  relating  to 
the  land  to  run  therewith,  viz.,  to  give 
the  remedy  to  the  party  grieved,  does 
not  apply  to  the  question  respecting  the 
burden   thereof     This  question   might 
have  arisen    in  Roach  v.   Wadham,  6 
East,  289.  There  John  Russ  being  seised 
of  an  undivided  third  part  of  a  certain 
messuage,  and  the  plaintiffs  of  the  two 
other  undivided  third  parts,  they  con- 
veyed the  whole  to  Coates  and  his  heirs, 
to  such  uses  as  Watts  should  appoint, 
and,    subject    thereunto,  to   the  use  of 
Watts  in  fee,  "yielding  and  paying,  and 
the  said  William  Watts,  and  by  his  di- 
I'ection  the  said  T.  Coates,  did,  and  each 
of  them  did,  grant  out  of  the  said  mes- 
suage to  the  plaintiffs,  their  heirs  and 
assigns  forever,  the  yearly  fee  farm  rent 
of2SZ.,  payable  quarterly."   Then  follow- 
ed a  covenant  by  Watts  for  himself  his 
heirs  and  assigns,  to  pay  the  rent  to  the 
plaintiffs,  their  heirs  and  assigns.    Then 
a  similar  rent  of  14Z.  was  reserved  to 
Russ.    Watts  afterwards  "  granted,  bar- 
gained, sold,  aliened,  released,  ratified, 
and  confirmed,  and  did  also  limit, direct, 
and  appoint,^''  the  premises  in  question 
r  ^qr,  I    to    Warlham,     Stevens,    *and 
'■      *  J    Powell,  (a  trustee,)  habendum 
to  Wadham,  Stevens,  and   Powell,  and 
the  heirs  and  assigns  of  Wadham   and 
Stevens,  as  tenants  in  common,  subject 
to  the  rent  of  42Z.,  which  Wadham  and 
Stevens  covenanted  with  Watts  to  pay 
in  equal  shares  and   proportions.     Wad- 
ham died,  leaving  the  defendant  his  de- 
visee in  fee  and  executor ;  the  moiety 
which  Wadham  had  covenanted   to  pay 
of  the  23Z.  rent  became  after  his  death 
three  years  in  arrear ;  and  this  action 
having  been  brouglit  for  the  recovery  of 
those  arrears,  a  case  was  ultimately  sta- 
ted for  the  opinion  of  the  Court  of  King's 
Bench,  the  question  in  which  was,  "  whe- 
ther the  defendant  as  executor  or  devi- 


see of  the  testator  Wadham  was  liable 
at  law  to  an  action  of  covenant  on  the 
said  covenant  made  by  Watts."  The 
court  held  that  he  was  not  liable,  for 
that  the  conveyance  by  Watts  to  Wad- 
ham, Stevens,  and  Powell,  operated  as 
an  appointment  under  the  powercreated 
by  the  conveyance  from  Russ  and  the 
plaintifl^s  to  Coates,  and  therefore,  even 
supposing  the  covenants  made  by  Watts 
with  the  plaintiff^s  to  be  capable  of  run- 
ning with  the  land  and  binding  Watts's 
assignee,  still  it  could  not  affect  Wad- 
ham, who  was  not  privy  in  estate  to 
Watts,  but  came  in  paramount  to 
him. 

Brewster  v.  Kitchell,  is  another  case 
often  referred  to  on  this  question  ;  it  is 
reported   in  Lord    Raym.  318 ;    Comb. 
424.  466;  1   Sal.  198;  12  Mod.  166; 
Holt,  175.  669;  with  the  arguments  of 
counsel,  5  Mod.  368.     It  was  a  feigned 
action  on  a  wager,  whether  the- defend- 
ant  had  a  right  to  deduct  As.  in  the 
pound  out  of  a  rent-charge  granted  to 
the    plaintiff"'s  ancestor  out  of  certain 
lands  in  Bucks,  of  which  the  defendant 
was  tei-re-tenant,  which  tax  of  4s.  in  the 
pound  was  granted  in  4th  and  5th  W. 
»k  M.    Upon  a  special  verdict  it  appear- 
ed, that  R.  Langford  being  seised  in  fee 
of  the  manor  of  Balmore,  granted  to  El- 
len Brewster  a  rent-charge  out  of  the 
manor,  to  her  and  her  heirs,  and   there 
was  a  covenant  for  further  assurance, 
and  this  memorandum  was  indorsed  on 
the  deed,  viz.:  "It  is  the  true  intent 
and  meaning  of  these  presents,  that  the 
within-named  Ellen  Brewster,  and  her 
heirs,  shall  be  paid  the  said  rent-charge 
without  deducting  of  any  taxes  for  the 
said  rent,  &c."     Afterwards,  R.  Lang- 
ford,  on  the  8th  of  July,  1652,  in  pur- 
suance of  the  covenant  in  the  first  deed, 
confirmed    the  rent  to  Ellen  Brev/ster 
and  her  heirs,  and  covenanted  that  the 
rent  should  be  paid  at  two  certain  feasts, 
free  of  all  taxes.     The  report  proceeds 
thus: — "After  several  arguments.  Holt, 
C.  J.,   pronounced   the   opinion  of  the 
court,  and  (by  him)  the  question  is,  upon 
this  special  verdict,  whether  the  cove- 
nant indorsed  upon  the  deed  of  tlie  20th 
of  Nov.  1649,  or  the  covenant  in  the 
deed  of  the  8th  of  July,  1652,  be  suffi- 
cient to  bind  the  grantor  and  his  heirs, 
to  pay  the   rent,  free  of  all  taxes  hcrc- 
nfter  to  be  charged  on  it  by  Act  of  Par- 
liament  ?     And   all   the  judges  were  of 
opinion,   that   this    covenant   binds    the 
grantor  and  his  heirs  to  pay  the  rent 


102 


SMITHS     LEADING    CASES. 


free  of  4s.  in  the  pound  tax."     Thus  far 
therefore,  the  question  of  the  burden  of 
the   covenant   running  with  the   lands 
does  not  appear  to  have  been  taken  into 
consideration.      However,   in    a   subse- 
quent part  of  his  judgment,  the  report 
proceeds  to  state,  Lord  Holt  "  made  an- 
other question,  which  was  not  observed 
at  the    bar,   nor  by    any  of  the   other 
judges,  viz. :  whether  the   terre-tenant 
was  liable  to  an  action  on  the  covenant, 
and  he  was  of  opinion  he  was  not ;  for 
(by  him)  if  the  tenant  in  fee  grants  a 
rent-charge  out  of  lands,  and  covenants 
to  pay  it  without  deduction,  for  himself 
and  his  heirs,  you  may  maintain  cove- 
nant against   the  grantor  and  his  heirs, 
but  not  against  the  assignee,  for  it  is  a 
mere  personal  covenant,  and  cannot  run 
with  the  land.    And,  for  a  case  in  point, 
he  cited  Hardr.  87,  pi.  5,  Coke  v.  Earl 
of  Arundel.     Therefore,  hence  it  does 
not  appear  that  tlie  defendant  is  bound 
by  this  covenant,  for  non  constat  whe- 
ther he  is  terre-tenant  or  no,  or  what 
he  is.     For  this  reason  he  was  of  opin- 
ion, that  judgment  ouglit  to  be  given  for 
the   defendant.      But   the   other    three 
judsfes  seemed  to  be  in  a  surprise,  and 
not  to  comprelicnd    this  objection,  and 
therefore  they  persisted  in  their  former 
opinion,   talking  of  agreements,  intent 
of  the  party  binding  the  lands,  and  I 
knoic  not  what.     They  gave  judgment 
for  the  plaintiff*,  against  the  opinion  of 
Holt,  C.  J.,  for  the  reasons  aforesaid." 
The  above  account  is  extracted,  verba- 
r*QQi    '^•'"»     f''°™     Lord     *Raymojid. 
L   dcJJ    rpj^g   account    of  the  disagree- 
ment between  Lord  Holt  and  the  three 
judges,  given  in  Salkeld,  is  extremely 
jejune,  being  comprised  in  a  marginal 
note  of  about  six  words.     But  in  12th 
Mod.  is  a  report  of  this  same  case  of 
Brewster  v.  Kitchell,  which,  if  accurate, 
and  there  seems  to  be  no  reason  for  dis- 
trusting  it,  places  the  matter  in  a  far 
clearer    and     more    satisfactory   light. 
Lord  Holt  is  there  made  to  say  in  deliv- 
ering his  judgment,  ^^  If  this  rent  was 
granted,  so  to  be  paid,  it  loould  be  an- 
other matter,  but  here  it  is  only  a  cove- 
nant, and  no   words   amountiyig  to  a 
grant,  and  therefore  there  can  be  no  re- 
lief in  this  case  against  the  terre-tenant 
but   in   equity;   and    therefore,   for  this 
point,  I  cannot  see  how  the  plaintitf  can 
have  his  judgment,  for  if  this  covenant 
should  charge  the  land,  it  would  be  high- 
er than  a  warrantia  chartse,  which  only 
affects  the  land  from  judgment  therein 


given."  "  But  the  other  judges"  (says  the 
reporter  "  thought  this  covenant  might 
charge  the  land,  being  in  the  nature  of  a 
grant,  or  at  least  a  declaration  going 
along  with  the  grant,  showing  in  what 
manner  the  thing  granted  should  be  tak- 
en.''^ So  that  the  real  difference  between 
Ld.  Holt  and  the  three  judges  appears  to 
have  been,  not  whether  an  action  of 
covenant  could  be  maintained  against 
the  defendant  as  assignee  of  the  land, 
but  whether  that  which  Lord  Holt  con- 
sidered a  covenant  was  not,  in  reality, 
part  of  the  grant;  for,  if  it  were,  the 
plaintiff  was  entitled  to  judgment  be- 
yond all  dispute,  the  action  not  being 
one  of  covenant,  but  a  feigned  issue 'to 
ascertain  the  net  amount  of  the  rent- 
charge.  So  that,  considering  the  case 
in  this  light,  there  is  Lord  Holt's  opinion 
that  a  covenant  to  pay  the  rent-charge 
would  not  run  with  llie  land  ;  an  opinion 
from  which  none  of  the  other  judges 
dissented,  the  point  on  which  they  really 
differed  being,  whether  that  which  the 
Lord  Chief  Justice  considered  a  mere 
covenant  was  not,  in  point  of  fact,  part 
and  parcel  of  tlie  grant ;  in  which  case, 
Lord  Holt  himself  had  admitted,  that, 
"  it  would  be  another  matter."  With 
respect  to  the  accuracy  of  the  report  in 
Mod.,  I  must  repeat,  that  there  seems 
little  reason  for  distrusting  it.  It  is  given 
at  considerable  length,  and  cannot  be 
said  to  disagree  with  that  of  Lord  Ray- 
mond, who  admits  that  he  had  no  distinct 
remembrance  of  the  grounds  on  which 
the  judges  based  their  dissent  from 
Holt's  opinion. 

In  Coke  v.  the  Earl  of  Arundel  (the 
case  cited  by  Lord  Holt,  from  Hardress, 
reported  also  in  1  Abr.  Eq.  26),  the 
Duke  of  Norfolk  being  seised  of  Black- 
acre  and  Whiteacre,  subject  to  a  cer- 
tain rent,  granted  Blackacre  to  A.,  cov- 
enanting that  it  should  be  discharged, 
of  the  rent,  and  granted,  afterwards, 
Whiteacre  to  B.  A.  filed  a  bill  to  charge 
Whiteacre  with  the  whole  rent,  urging, 
that  the  covenant  ran  therewith,  and 
bound  B.  But  the  court  thought  the 
covenant  only  binding  on  the  Duke  of 
Norfolk  and  his  representatives,  and  dis- 
missed the  bill.  (See  Lord  Cornbury  v. 
Middleton,  Cases  in  Chancery,  208.) 

The  case  of  Holmes  v.  Buckley,  1 
Abr.  Eq.  27,  is  another  case  thought  to 
bear  upon  this  point,  and  was  as  follows. 
A.,  and  R.  his  wife,  being  seised  in 
right  of  R.  of  two  pieces  of  ground, 
granted  by  indenture  a  watercourse  to 


SPENCERS    CASE. 


103 


J.  JI,  and  his  heirs,  through  the  said 
two  pieces  of  ground  and  covenanted 
for  them,  tlieir  heirs  and  assigns,  to 
cleanse  the  same;  and  that  all  tines 
and  recoveries  to  be  levied  or  suffered 
of  the  grounds  should  enure  to  the 
strengthening  and  confirming  the  said 
watercourse.  Afterwards  a  recovery 
was  had,  and  a  deed  executed,  declaring 
Uie  uses  to  be  as  aforesaid.  The  water- 
course, by  mesne  assignments^  came  to 
the  plaintiff,  and  the  two  pieces  of 
ground  to  the  defendant,  who  built  on 
tlie  same  aijd  much  heightened  the 
ground  which  lay  over  the  watercourse, 
and  rendered  it  much  more  chargeable 
and  inconvenient  to  repair  ;  and,  as  it 
was  alleged,  and  in  fart  proved,  the 
building  had  much  obstructed  the  water- 
course. And  so  the  bill  was  for  estab- 
lishing the  enjoyment  of  the  water- 
course, and  that  the  defendant,  and  all 
claiming  under  him,  might  from  time  to 
time  cleanse  tiie  same,  according  to  the 
covenant.  It  was  objected  that  the 
covenant  being  a  personal  covenant, 
was  not  at  all  strengthened  by  the  re- 
covery; and  that  tiie  plaintiff,  and  those 
under  whom  he  claimed,  being  sensible 
of  it,  and  for  forty  years  cleansed  the 
same  at  their  own  charges.  But  the 
r  *q4  -]  court  was  of  opinion,  *lhat  this 
'-  -'  was  a  covenant  which  ran  with 
the  land,  and  was  made  good  by  the 
recovery ;  though  the  plaintiff  had 
cleansed  the  same  at  his  own  charge, 
while  it  was  easy  to  be  done,  and  of 
little  charge;  yet,  since  the  right  was 
plain  upon  the  deed,  and  the  cleansing 
was  made  chargeable  by  the  building,  it 
was  reasonable  the  defendant  should  do 
it,  and  decreed  accordingly,  and  gave 
the  plaintiff  his  costs. 

It  will  be  observed  on  this  case,  that 
not  only  may  it  be  urged  here,  as  in 
Brewster  v.  Kitchell,  that  the  covenant 
was,  in  fact,  part  of  the  grant,  but  that, 
even  if  there  iiad  been  no  covenant,  the 
defendant  was  guilty  of  a  wrongful  act, 
when  he  obstructed  and  injured  the 
plaintiff's  watercourse,  subject  to  which 
he  took  his  own  estate,  and  of  the  ex- 
istence of  which  he  had  notice,  tor  the 
deed  declaring  the  uses  of  the  recovery, 
under  which  deed  he  must  have  claimed, 
made  mention  of  the  previous  grant  of 
the  watercourse;  and  the  court  appears 
to  have  relied  upon  the  wrongful  ob- 
struction as  a  ground  for  its  decree,  as 
is  plain  from  the  words  "  and  the  cleans- 
ing made  chargeable  by  the  building,^' 


On  the  other  hand,  if  the  effect  of  the 
case  be  taken  to  be,  that  the  court 
thought  the  covenant  one  on  which  an 
action  might  have  been  maintained  at 
law  by  the  plaintiff  against  the  defend- 
ant, it  seems  questionable  whether  it 
do  not  prove  too  much ;  for,  as  both  the 
parties  were  assignees,  one  of  the  land, 
and  the  other  of  the  watercourse,  it 
would,  in  order  to  support  such  an  ac- 
tion of  covenant,  bo  necessary  to  hold, 
not  merely  that  the  burden  of  the  cove- 
nant ran  with  the  land,  but  that  the 
benefit  of  it  ran  with  the  watercourse  ; 
for,  otherwise,  the  plaintiff,  not  being- 
the  original  covenantee,  would  have  no 
right  of  action  :  and  it  would  probably 
be  found  somewhat  ditficult  to  contend 
that  a  covenant  could  run  with  such  an 
easement  as  a  watercourse.  See  M  lines 
V.  Branch,  5  M.  &  S.  417,  and  post. 
Vide  tamen  E.  of  Portmore  v.  Bunn,  1  B. 
&  C.  494. 

The  case  of  Barclay  v.  Raine,  1  S.  &. 
Stu.  449,  has  been  thought  to  bear  upon 
this  controversy,  but  a  close  examina- 
tion will  show  that  it  cannot  with  pro- 
priety be  cited  as  an  authority  on  either 
side.  A.  being  seised  of  Blackacre  and 
VVhiteacre,  under  the  same  title,  and 
comprised  in  the  same  deeds,  sold  Black- 
acre  to  Thring,  and  delivered  the  deeds 
to  him,  Thring  covenanting  for  their 
production  to  A.,  his  heirs,  executors, 
administrators  and  assigns,  l^his  deed 
was  lost,  and,  though  a  copy  of  it  exist- 
ed, the  copy  was  in  a  mutilated  state, 
partly  illegible.  A.  afterwards  sold 
VVhiteacre  to  Barclay,  the  father  of  the 
plaintiffs:  Thring  then  sold  Blackacre 
to  James  and  John  Slade,  who  refused 
to  give  a  fresh  covenant  for  the  produc- 
tion of  title-deeds.  On  the  sale  to  the 
Slades,  part  of  the  purchase-money  was 
secured  by  mortgage :  and  the  title- 
deeds,  together  with  the  mortgage-deed, 
were  lodged  with  Thring.  The  plain- 
tiffs, who  had  contracted  to  sell  White- 
acre  to  the  defendant  Raine,  applied  to 
Thring,  for  a  covenant  to  produce  the 
title-deeds,  and  he  executed  a  covenant 
by  which  he  covenanted  with  the  defen- 
dant Raine,  to  produce  the  title-deeds 
while  he  should  continue  mortgagee. 
'J'he  defendant  objected  to  this  as  insuf- 
ficient, and  Thring  then  executed  ano- 
ther deed  in  which  he  acknowledged 
the  execution  of  the  first  covenant,  and 
also  that  the  deeds  were,  at  the  date  of 
this  last  deed,  in  his  possession.  Under 
these  circumstances  the  question  was, 


104 


SMITHS    LEADING     CASES. 


whether  the  defendant  could  be  com- 
pelled to  complete  his  purchase,  and  tlie 
vice-chancellor  (Sir  J.  Leach)  decided 
that  he  could  not;  and  is  reported,  in  1 
Sim.  &  Stu.  454,  to  have  said  on  that 
occasion,  "that  equity  never  compels  a 
purchaser  to  take  without  the  title-deeds, 
unless  he  have  a  covenant  to  produce 
them;  that  a  mere  equitable  rif^ht  to 
their  production,  even  if  it  existed, 
would  not  be  sufficient,  and  that  Thrinjr's 
covenant  to  prmhice  did  not  run  with 
the  lands."  It  is  obvious,  that  this  last 
observation,  if  made  at  all,  could  not 
have  been  intended  to  apply  to  the  se- 
cond covenant  executed  by  Tliring, 
which  would  be  clearly  insufficient,  in- 
asmuch as  it  was  restrained  to  the  time 
during  which  he  should  continue  mort- 
c;agee ;  when  he  ceased  to  be  mortga- 
gee the  Slades  would  be  entitled  to  the 
deeds,  and  it  was  therefore  necessary, 
that  some  covenant  should  exist,  the 
r  *9^  1  ^^^^^  ^^  whicli  should  last 
L  -I  *beyond  tliat  period ;  and  so 
the  master  had  reported.  It  was  thera- 
fore  immaterial  whetber  the  second 
covenant  would  or  would  not  run  witli 
the  land,  and  the  true  question  was  ; 
1st,  whether  the  covenant /as<  executed 
by  Thring  would  bind  tlie  Slades.  2dly, 
if  so,  whether  it  would  bind  them  for 
the  benefit  of  Raine;  and,  3dly,  sup- 
posing the  coveimnt  would  bind  the 
Slades,  and  would  enure  to  Raine's  ben- 
efit, ivhether  there  was  siificient  legal 
evidence  of  its  contents  ;  for,  if  not,  it 
would  of  course  be  as  useless  as  if  it 
never  had  existed.  (See  the  judgment 
of  the  Master  of  the  Rolls,  in  Bryant  v. 
Busk,  4  Russ.  1.)  Now  the  first  of 
these  points  would  have  involved  the 
question,  whether  the  burden  of  Thring's 
covenant  would  run  with  Blackacre  to 
his  vendees,  the  Slades  !  The  second 
would  have  involved  the  question, 
whether  the  hc.nejit  of  it  would  run  along 
with  Whiteacrc,  from  A.,  the  cove- 
nantee, to  the  Barclays,  and  from  them 
to  Raine?  But  it  became  unnecessary 
to  decide  either  of  these  two  points,  be- 
cause it  appears  clear  that  the  third 
point  was  against  the  vendor  ;  in  other 
words,  it  appears  clear,  that,  whatever 
might  have  been  the  effect  of  the  cove- 
nant, there  was  no  legal  evidence  of  its 
contents.  The  deed  was  lost,  the  copy 
was  mutilated,  and  partly  illegible  ;  and, 
if  entire,  would  only  have  been  second- 
ary evidence  of  the  original  if  duly 
proved  to  be  a  true  copy,  and  it  does 


not  appear  that  that  could  have  been 
done;  and  the  deed  lastly  executed  by 
Thring,  even  had  it  set  out  the  contents 
of  the  tirst  deed,  which  in  all  probability 
it  did  not,  would  not  have  been  evidence 
against  tlie  Slades,  as  it  was  not  exe- 
cuted till  after  Thring  had  parted  with 
his  interest  in  the  lands  to  them.  The 
questions,  therefore,  whether  cither  the 
benefit  or  burden  of  Thring's  covenant 
ran  with  the  land  did  not  arise ;  and  it 
might  have  been  supposed  that  the  Vice- 
Chancellor,  in  pronouncing  judgment, 
would  have  omitted  all  consideration  of 
them,  had  it  not  been  that  the  reporter 
puts  into  his  mouth  the  following  words : 
"  Thring^s  covenant  to  produce  docs 
not  run  tcilh  the  land."  However,  in 
the  7tli  volume  of  Jarman's  Bythewood, 
p.  375,  under  the  report  of  13arclay  v. 
Raine,  I  find  the  following  note  : — "  His 
Honour  lately  denied  his  having  used  the 
expressions  here  imputed  to  him,  he 
did  not  say  that  Thring's  frst  covenant 
didniot  run  with  the  land  {for  his  Honour 
thought  it  clearly  did),  but  that  the  se- 
cond  covenant  was  restricted  to  the 
period  of  his  being  mortgagee."  Rolls, 
28tli  July,  1830.  It  seems  therefore, 
that  Sir  John  Leach's  private  opinion 
was,  that  Thring's  first  covenant  did 
run  with  the  land,  but  whether  he 
thought  that  the  benefit  of  it  ran  with 
Whitcacre,  or  the  burden  with  Black- 
acre,  or  that  both  benefit  and  burden  ran 
with  the  land,  is  left  completely  in  am- 
biguo.  One  thing  however  is  quite 
plain,  viz.,  that  Barclay  v.  Raine  is  no 
decision  on  the  present  question  ;  since, 
had  his  Honour  thought  that  there  was 
a  sufficient  covenant,  and  sufficient  evi- 
dence of  its  contents,  he  must  have  de- 
cided in  favour  of  the  plaintiffs  and 
against  Raine,  who  would  then  have 
had  no  excuse  for  not  completing  his 
purchase. 

Covenants  like  that,  to  pay  a  rent- 
charge  issuing  out  of  the  land  have  re- 
ference to  an  interest  possessed  by  the 
covenantee  independently  of  the  cove- 
nant, but  there  are  other  covenants  un- 
connected with  any  interest  in  the  land, 
such  as  a  covenant  by  the  owner  of  the 
land,  that  it  shall  never  be  built  upon  or 
never  planted,  or  imposing  any  other 
restriction  on  the  mode  of  its  enjoyment, 
in  favour  of  a  person  having  no  property 
therein.  The  possibility  of  making 
these  covenants  run  with  land  has  been 
questioned,  not  merely  on  the  general 
ground  above  staled,  namely,  that  the 


SPENCERS    CASE. 


105 


burden  of  a  covenant  cannot  run  with 
land  except  between  landlord  and  ten- 
ant,   though  the  benefit  thereof  may  ; 
but  also  on  the  ground  that  they  infringe 
the  rule  of  law  against  perpetuities,  by 
tendhig  to  impede  the  free  circulation 
of  property.     An  instance  of  a  covenant 
of  this  sort  is  to  be  found  in  a  note  to 
Fitzherbert's  Natura  Brevium,  fo.  145, 
for  which  he  cites  tho  year  book  4  H.  3, 
57,  not  in   print.     The  note  is  as  fol- 
losvs : — "  A  man  covenants  tiiat  neither 
he  nor  his  heirs  shall  erect  any  mill  in 
such  a  place,  and  an  action  of  covenant 
is  thereupon  brought  by  the  heir,  and 
well."     I    presume    that  the    words  by 
the  heir  signify  the  heir  of  the  cove- 
nantee, and    probably    the    main    ques- 
,  ^„P  -,  tion  in  that  case  was  *  whether 
L        -I  the   heir,    who  had    perhaps  in- 
herited some  mill  which  the  covenant 
was  framed  to  protect,  or  the  executor 
of  the  covenantee  should  bring  the  ac- 
tion.    It  has  been    remarked,   by  very 
high  authority,  that  "  in  the  case  cited 
by°Hale,  the  covenant  was  held  to  be 
good,  but  that  does  not  go  far  towards 
removing  the  doubt,  for  that  case  occur- 
red at  a  period  long  before  the  law  of 
perpetuity  was   introduced,"  3d  Report 
of  the  R.  P.   Commissioners,  54.      In 
\  addition    to  which  it  may  be  observed 
that  even  had  the  case  occurred  since 
tlie  rule  against  perpetuities,  it  might 
not  have  etfcctually  resolved  the  doubt 
as  to  tlie  operation  of  that  rule,  for  the 
action    was  brought   against   the  cove- 
nantor himself,  of  whose  liability  there 
could  be  no  question,  and  as  the  word 
assigns  docs  not  occur  in  the  covenant, 
it  may  be  doubted  whether  tiie  assignees 
would  have  been  bound  by  it,  as  it  can 
hardly  be  said  to  relate  to  a  thing  in 
esse,   parcel  of  the    covenantor's  land ; 
and  if  tlie  assignees  would  not  be  bound 
by  it,  it  could  liave  no  tendency  to  im- 
pede  the  circulation  ot  the  land  as  to 
create  a  perpetuity. 

These  subjects  have  been  very  lately 
discussed  in  the  case  of  Keppel  v.  Bai- 
ley, in  the  Court  of  Chancery,  2  Mylne 
&  K.  517,  in  which  the  questions  were 
elaborately  argued,  and  every  authority 
on  either  side,  it  is  believed,  cited  either 
by  counsel,  or  by  the  Lord  Chancellor 
(Brougham)  in  delivering  his  judgment. 
lu  that  case,  certain  persons  liaving 
formed  themselves  into  a  company  for  the 
establishment  of  a  railroad,  called  the 
Trevil,  Edward  and  Jonathan  Keppel, 
who  held  the  Beaufort  iron-works  under 


a  long  lease,  had  covenanted  with  the 
proprietors  of  the  railroad  and  their  as- 
signs that  they,  their  executors,  admin- 
istrators, and  assigns,  would  procure  all 
the  limestone  wanted  for  the  iron-works 
from  the  Trevil  quarry,   and  carry   it 
along  the  Trevil  railroad,  paying  a  cer- 
tain toll.     Edward  and  Jonathan  Kep- 
pel  assigned    their   lease   of  the  iron- 
works to  the  defendants,  who  began  to 
construct  a  railroad  to  other  lime  quar- 
ries, situated    eastward   of  the   Trevil 
quarry  ;  and  on  a  bill  for  an  injunction 
to  restrain  them  from  using  that  or  any 
other  new  road,  it  was,   among  other 
points,  objected  to  the  covenant  that  it 
was  void,  as  tending  to  create  a  perpe- 
tuity, that  it  was  void  as  in  restraint  of 
trade,  and  that  it  was  not  such  a  cove- 
nant as  would  run  with  the  lands,  so  as^ 
to  bind   the  defendants,  as  assignees  of 
the  iron-works.     Upon   the  first  point, 
the  Lord  Chancellor  appeared  to  think 
that  it  could  not  be  invalidated  on  the 
ground  of  perpetuity.     "  I  do  not,"  said 
he,  "  at  all  doubt  that  the  enjoyment  of 
property  may  be  tied  up,  and  an  illegal 
perpetuity  created,  by  annexing  condi- 
tions to  grants,  or  by  executing  cove- 
nants, whereby  whoever  happens  to  be 
in    possession  shall   be  restrained  from 
using  that  which  is  the  subject  of  the 
grant  or  covenant,  in  all  but  a  certain 
prescribed  way,   provided   always  that 
the    restraint  so  constituted  is  not  re- 
served  in  t'avour  of  some   other  party 
who  may  release  it  at  his  pleasure ;  and, 
therefore,  all  such  conditions  and  cove- 
nants are  void  if  they  go  beyond  the  pe- 
riod allowed  by  law.     But  if  the  party 
for  whom  the  condition  is  made,  or  the 
party  covenantee,  has  the  entire  power 
of  dealing  with  his  interest  in  the  sub- 
ject-matter, it  is  an  obvious  mistake  to 
treat  this  as  an   instance  of  perpetuity, 
or  of  any  tendency  towards  perpetuity. 
Indeed  the  property,  the  subject-matter 
of  consideration  here,  is  not  the  estate 
fettered  by  the  condition  or  covenant, 
but  the  benefit  reserved  by  the  condi- 
tion or   secured  by    tlie  covenant,  and 
upon   that  there   is,  by  the  hypothesis, 
no  restraint   at   all ;  and    certainly,  to 
take  another  view,  though  one  of  the 
parties  interested,  the  owner  of  the  pro- 
perty subject  to  the  covenant  or  condi- 
tion may  be  tast,  the  other  is  loose,  and 
so,   quoad,   all,   taken   together,  that  is 
quoad  all  interested,  the  property  is  free. 
— Upon  other  grounds,  such  a  restraint 
may  be  objectionable  and  void  in  law, 


106 


SMITHS     LEADING    CASES. 


as  well  as  bad  in  policy,  but  certainly 
not  upon  the  doctrine  of  perpetuity,  by 
which  it  is  no  more  struck  at,  tlian  a 
right  of  way  or  other  easement,  which 
the  owners  of  one  estate  may  enjoy  over 
the  close  of  another.  There  appears, 
at  first,  to  be  more  weight  in  the  objec- 
tion, that  covenants  of  this  description 
are  in  restraint  of  trade.  The  covenant 
here  is  not  in  general  restraint  of  trade, 
r  *q7  ■\  which  would,  *beyond  all  doubt, 
^  -'  make  it  void,  in  whatever  way 
the  purpose  was  effected.  The  restraint 
is  only  partial,  and  then  the  law  will 
support  it :  '  if,'  to  use  the  words  of 
Parker,  C.  J.,  in  Mitchell  v.  Reynolds, 
'  in  the  opinion  of  tlie  court,  whose  of- 
fice it  is  to  determine  upon  the  circum- 
stances, it  appears  to  be  a  just  and  honest 
contract.'  " 

Upon  the  great  question,  viz.,  whether 
the  covenant  were  capable  of  running 
with  the  Beaufort  iron-works,  so  as  to 
bind  the  defendants  as  assignees  tliereof, 
his  lordship  expressed  a  very  decided  opi- 
nion in  the  negative: — "  Assuming  that 
the  Keppels  covenanted  for  their  assigns 
of  the  Beaufort  works,  could  they,  by  a 
covenant  with  persons  who  had  no  rela- 
tion whatever  to  those  works,  except 
that  of  having  a  lime  quarry  and  a  rail- 
way in  the  neighbourhood,  bind  all  per- 
sons who  should  become  owners  of  those 
works,  either  by  purcliase  or  descent,  at 
all  times,  to  buy  their  lime  at  the  quar- 
ry, and  carry  their  iron  on  the  railway  ; 
or  could  they  do  no  more,  if  the  cove- 
nant should  not  be  kept,  than  give  the 
covenantees  a  right  of  action  against 
themselves,  and  recourse  against  their 
heirs  and  executors,  as  far  as  those  re- 
ceived assets'!  Consider  the  question 
first  upon  principle:  there  are  certain 
known  incidents  to  property  and  its 
enjoyment,  among  others,  certain  bur- 
thens wherewith  it  may  be  affected,  or 
rights,  which  may  be  created,  or  en- 
joyed with  it,  by  parties  other  than  the 
owner,  all  which  incidents  are  recog- 
nised by  the  law.  But  it  must  not, 
therefore,  be  supposed  that  incidents  of 
a  novel  kind  can  be  devised  and  attached 
to  property  at  the  fancy  or  caprice  of 
any  owner.  It  is  clearly  inconvenient 
both  to  the  science  of  the  lav/  and  to  the 
public  weal,  that  such  a  latitude  should 
be  given.  There  can  be  no  harm  in 
allowing  men  the  fullest  latitude  in 
bindmg  themselves  and  ther  represent- 
tives,  tiiat  is,  their  assets  real  and  per- 
sonal, to  answer  in  damages  for  breach 


of  their  obligations.  This  tends  to  no 
detriment,  and  is  a  reasonable  liberty 
to  bestow ;  but  great  detriment  would 
arise,  and  much  confusion  of  rights,  if 
parties  were  allowed  to  invent  new 
modes  of  holding  and  enjoying  real  pro- 
perty, and  to  impress  upon  their  lands 
and  tenements  a  peculiar  character, 
which  should  follow  them  into  all  hands, 
however  remote.  Every  close,  every 
messuage,  might  thus  be  held  in  a  differ- 
ent fashion,  and  it  would  be  hardly  pos- 
sible to  know  what  rights  the  acquisi- 
tion of  any  parcel  conferred,  or  what 
obligations  it  imposed.  The  right  of 
way  or  of  common  is  of  a  public,  as 
well  as  of  a  simple  nature,  and  no  one 
who  sees  the  premises  can  be  ignorant 
of  what  all  the  vicinage  knows.  But  if 
one  man  may  bind  his  messuage  and 
land  to  take  lime  from  a  particular  kiln, 
anolher  may  bind  his  to  take  coals  from 
a  certain  pit,  while  a  third  may  load  his 
with  obligations  to  employ  one  black- 
smith's forge,  or  the  members  of  one 
corporate  body,  in  various  operations  on 
the  premises,  besides  many  other  re- 
straints, as  infinite  in  variety  as  the 
imagination  can  conceive  ;  for  there  can 
be  no  reason  whatever  in  support  of  the 
covenant  in  question,  which  would  not 
extend  to  every  covenant  that  can  be 
devised.  The  difference  is  obviously 
very  great  between  such  a  case  as  this, 
and  the  case  of  covenants  in  a  lease 
wliereby  the  demised  premises  are  af- 
fected with  certain  rights  in  favour  of 
the  lessor.  The  lessor  or  his  assignees 
continue  in  the  reversion  while  the  term 
lasts.  The  estate  is  not  out  of  them 
though  the  possession  is  in  the  lessee  or 
his  assigns.  It  is  not  at  all  inconsistent 
with  the  nature  of  property  that  certain 
things  should  be  reserved  to  the  rever- 
sioner all  the  while  the  term  continues, 
it  is  only  something  taken  out  of  the 
demise,  some  exception  to  the  tempora- 
ry surrender  of  the  enjoyment.  It  ia 
only  that  they  retain  more  or  less  par- 
tially the  use  of  what  was  wholly  used 
by  them  before  the  demise,  and  what 
will  again  be  wholly  used  by  them  when 
that  demise  is  at  an  end." 

The  question  was  also  discussed  at 
considerable  length  in  the  Duke  of  Bed- 
ford v.  The  Trustees  of  the  British 
Museun),  2  Mylne  &  K.  552.  That  case, 
however,  turned  at  last  upon  a  point 
purely  of  equity,  the  court  conceiving, 
that,  however  the  rights  of  the  parties 
might  be  at  law,  it  was  a  case  in  which 


SPENCERS    CASE. 


107 


equity  ought  not  to  interfere.  See  Col- 
lins V.  Plumb,  16  Ves.  434. 

In  Randall  v.  Rigby,  4  M.  &  VV.  130, 
the  defendant  had  covenanted  for  the 
payment  of  an  annunily  or  rent  issuing 
out  of  land.  "  No  doubt,"  said  Parke,  B., 
"  this  covenant  is  collateral  or  in  gross 
in  one  sense,  that  it  does  not  rim  with 
the  land  or  rent." 

Upon  the  whole,  there  appears  to  be 
r  *qa  "I  "°  ^authority  for  saying  that  the 
t  J  burden  of  a  covenant  will  run 
with  land  in  any  case,  except  that  of 
landlord  and  tenant,  while  the  opinion 
of  Lord  Holt  in  Brewster  v.  Kitchell, 
that  of  Lord  Brougham,  in  Keppell  v. 
Bailey,  and  the  reason  and  convenience 
of  the  thing,  all  militate  the  otiier  way. 

As  to  the  subject-matter  to  which  a 
covenant  may  be  incident,  so  as  to  run 
with  it  to  the  assignee. — The  principal 
case  shows  that  covenants  will  not  run 
with  personal  property.  In  Milnes  v. 
Branch,  5  M.  &  S.  417,  J.  B.  being 
seised  in  fee,  conveyed  to  the  defendant 
and  J,  J.,  their  heirs  and  assigns,  to  the 
use  that  J.  B.,  his  heirs  and  assigns, 
might  have  a  rent  out  of  the  premises, 
and  subject  thereto  to  the  use  of  the 
defendant  in  fee,  and  the  defendant  cove- 
nanted with  J.  B.,  his  heirs  and  assigns, 
to  pay  J.  B.,  his  heirs  and  assigns,  the 
rent,  and  to  build  within  a  year  one  or 
more  messuages  on  the  premises  for 
securing  the  rent.  J.  B.  within  a  year 
demised  the  rent  to  the  plaintifts  for  1000 
years.  It  was  held  that  covenant  would 
not  lie  for  the  plaintiffs,  either  for  non- 
payment of  the  rent  or  not  building  the 
messuages;  and  the  court,  in  giving 
judgment,  expressed  a  clear  opinion  that 
a  covenant  could  not  run  with  rent. 
Accord,  per  Parke,  B.,  in  Randall  v. 


Rigby,  4  Mee.  &  Welbs.  135,  where  the 
defendant  had  covenanted  to  pay  a  rent 
charged  upon  land.  "  No  doubt,"  said 
his  lordship,  "  this  covenant  is  collateral 
or  in  gross  in  one  sense,  that  it  does  not 
run  with  the  land  or  rent,  for  that  Milnes 
V.  Branch  is  an  authority."  In  Bally  v. 
Wells, Wilmot's  Notes,  341,  vide  3  VVils. 
25,  it  was,  however,  held  that  a  covenant 
might  run  with  tithes.  That  was  an 
action  brought  by  George  Bally,  clerk, 
rector  of  Monkton,  against  James  Wells, 
assignee  of  one  Whitmarsh,  to  whom 
the  plaintiff"  had  demised  all  the  tithes  of 
the  parish  of  Monkton,  for  six  years,  by 
a  lease  containing  the  following  cove- 
nant : — "  And  the  said  James  Whit- 
marsh, for  himself,  his  executors,  ad- 
ministrators, and  assigns,  doth  covenant 
and  agree,  not  to  let  any  of  the  farmers 
now  occupying  the  estate  at  Monkton 
have  any  part  of  the  tithes  aforesaid, 
withotit  the  consent  of  the  said  George 
Bally  in  writing  first  had  and  obtained." 
James  Whitmarsh  assigned  his  interest 
in  the  tithes  to  the  defendant,  who  let 
several  farmers,  occupiers,  have  part  of 
the  tithe  without  the  consent  of  Mr. 
Bally,  who  thereupon  brought  an  action 
of  covenant,  and  after  verdict  for  the 
plaintiff,  it  was  moved,  among  other 
things,  in  arrest  of  judgment,  that  tithes 
are  incorporeal,  lying  in  grant,  and 
therefore  that  such  a  covenant  cannot 
run  with  them.  The  court,  however, 
gave  judgment  for  the  plaintift'.  See  E. 
of  Portmore  v.  Bunn,  1  B.  &.  C.  694. 

Covenants  will  not  run  with  an  estate 
to  which  the  covenantee  is  only  entitled 
by  estoppel.  Noke  v.  Avvder,  Cro.  Eliz. 
436.  Whitten  v.  Peacock,  2  Bing.  N. 
C.411. 


It  sufficiently  appears  from  the  authority  of  Spencer's  case,  and  the 
principles  there  laid  down,  that  the  general  rule  of  law  under  which  a 
chose  in  action  is  incapable  of  assignment,  meets  with  no  exception  in  the 
instance  of  covenants,  save  when  they  are  to  be  performed  on  or  about  land 
to  which  they  relate.  But  although  no  covenant  can  pass  with  the  assign- 
ment of  an  estate  in  land,  unless  where  directly  or  by  construction  of 
law,  to  be  performed  upon  or  about  it,  yet  it  is  by  no  means  true,  that  in 
every  such  case,  the  capacity  for  running  with  the  land,  will  exist  in  the 
covenant.  The  existence  of  this  capacity,  depends  not  merely  upon  the 
nature  of  the  covenant  and  its  relation  to   the  land,  but  upon  the  nature  of 


108  smith's  leading   cases. 

the  estate  in  land  to  which  it  relates,  and  the  absence  or  presence  of  tenure, 
and  consequent  privity  of  estate,  as  between  covenantor  and  covenantee. 

It  is  here  proposed  in  the  first  place,  to  examine  how  far  covenants, 
capable  in  their  own  nature,  of  running  with  the  assignment  of  a  present 
estate  in  land,  possess  or  retain  that  capacity ;  where  no  tenure  exists,  and 
no  estate  passes  between  covenantor  and  covenantee,  at  the  time  of  covenant 
made  ;  where  an  estate  in  fee  is  passed  but  no  tenure  created ;  and  where 
there  is  both  an  estate  passed  and  tenure  created  :  and  then  to  proceed  to 
the  determination  of  the  same  point,  where  the  assignment  on  which  the 
question  of  the  running  of  the  covenant  arises,  is  not  of  an  estate  in  posses- 
sion, but  in  reversion  ;  or  is  a  mere  assignment  of  an  incorporeal  heredita- 
ment, of  original  and  independent  creation,  or,  severed  from  a  reversion,  to 
which  it  was  originally  attached. 

Agreeably  to  the  decision  cited  by  Coke,  from  the  42  E.  3,  3,  and  sanc- 
tioned by  his  authority,  in  favour  of  the  validity  of  the  covenant  entered 
into  by  the  prior  and  convent,  with  the  tenant  of  land  in  fee  simple,  as 
between  the  assignee  of  the  land  and  the  covenantors,  there  can  be  no  doubt 
that  the  benefit  of  a  covenant  to  do  something  about  or  relating  to  the  land 
of  the  covenantee,  made  by  a  stranger,  not  in  privity  of  contract  or  estate, 
with  a  subsequent  .assignee  of  the  land,  may  pass  to  such  assignee  as  an 
exception  to  the  general  rule,  that  choses  in  action  are  not  assignable.  It  is 
under  this  doctrine  of  law,  that  the  various  covenants  for  title  and  farther 
assurance,  all  of  which  are  for  the  benefit  of  the  land,  run  with  it  to  the 
assignees,  even  when  the  original  grant  has  been  in  fee.  In  this  case,  there 
is  in  England  no  privity  of  estate  between  the  covenantor  and  covenantee, 
but  the  former  has  always  been  held  liable  in  actions  brought  on  such  cove- 
nants to  the  assignees  of  the  latter  ;  Middlemore  v.  Goodale,  Croke  Car. 
505;  Lewis  v.  Campbell,  8  Taunton,  715.  Coke,  however,  confines  this 
exception  to  covenants  to  perform  some  act  relative  to  the  land  ;  and  this, 
from  the  law  as  announced  by  Lord  Holt,  in  Brewster  v.  Kitchell,  and  the 
general  current  of  legal  authority  in  England,  would  seem  to  mean  the  land 
of  the  covenantee.  Where  the  covenantor  charges  land  which  he  him- 
self holds  in  fee,  and  there  is  no  privity  of  estate  between  the  covenantee 
and  the  subsequent  assignee  of  the  covenantor,  it  would  seem,  that  although 
the  covenant  be  one  of  those  Avhich  are  technically  said  to  run  with  land, 
and  which,  if  entered  into  by  a  lessee  for  life  or  years,  would,  in  conse- 
quence of  the  privity  of  estate  accruing  on  the  assignment,  bind  his  assignee 
in  favour  of  the  reversioner  ;  )''et  as  the  covenantee  is  a  stranger  to  the  land, 
the  burden  of  the  covenant  will  not  pass  with  the  land,  to  one  who  takes  it 
by  assignment  from  the  covenantor.  In  other  words,  although  the  benefit 
of  covenants  will  inure  to  the  assignees  of  estates  in  fee,  where  there  is  no 
privity  of  contract  or  estate,  the  burden  will  not ;  although  the  covenants  be 
of  a  character,  under  other  circumstances,  to  run  with  land,  both  as  regards 
their  benefit  and  their  burden.     Plj^mouth  v.  Carver,  16  Pick.  183. 

Fully  to  understand  the  case  of  Brewster  v.  Kitchell,  1  Lord  Raymond, 
317.  322,  which  must  be  regarded  as  determining  this  point,  it  must  be  kept 
in  mind,  that  the  rent  there  in  dispute,  was  the  early  common  law  rent- 
charge  granted  out  of  land  by  the  tenant,  and  not  the  constructive  rent- 
charo^e  reserved  on  a  conveyance  in  fee,  and  that  the  question  was,  as  to  the 
amount  of  the  rent,  and  not  as  to  the  liability  of  the  land  in  the  hands  of  the 


spencer's   case.  109 

assignee,  to  a  distress  for  that  amount  when  settled.  The  case  depended  on 
the  question,  whether  a  covenant  made  by  the  tenant  of  the  land,  and  grantor 
of  the  rent-charge,  to  pay  without  deduction  for  taxes,  could  be  binding  on 
an  assignee  of  the  land  from  such  covenantor,  not  in  privity  of  contract  or 
estate  with  the  covenantee,  and,  in  effect,  vary  the  amount  of  rent  for  which 
he  was  liable,  by  obliging  him  to  pay  the  taxes,  without  deducting  what  he 
thus  paid  from  the  rent.  There  can  be  no  doubt,  on  comparing  together 
the  different  reports  of  the  case,  that  the  other  judges  agreed  with  Holt,  that 
the  covenant  was  not  binding  on  the  assignee  of  the  land,  as  a  covenant; 
but  they  were  of  opinion,  that  taking  the  deed  as  a  whole,  it  granted  all 
which  by  its  face  it  appeared  to  have  been  the  intention  of  the  grantor  to 
pass,  and  as  the  question  was  on  a  wager  as  to  the  amount  of  the  rent,  and 
not  as  to  the  form  of  the  remedy,  they  decided  for  the  plaintiff.  In  the  Eng- 
lish case  just  stated,  the  burden  which  the  covenant  imposed,  was  the  pay- 
ment of  money ;  but  it  is  evident  that  the  same  law  must  apply  in  the  case 
of  any  other  burden  ;  and  consequently,  although  the  assignee  in  fee  of 
land  miglit,  agreeably  to  the  case  of  the  prior  and  convent,  take  advantage 
of  a  covenant  made  by  an  entire  stranger,  with  the  assignor,  to  erect  build- 
ings on  the  land,  yet,  if  the  assignor  had  covenanted  with  the  stranger, 
to  erect  them  himself  for  the  stranger's  benefit,  the  burden  of  such  cove- 
nant would  not  pass  to  the  assignee,  nor  could  the  covenantee  compel  him 
to  execute  it. 

The  case  of  Taylor  v.  Owen,  2  Blackford's  Indiana  Reports,  301,  proves 
that  this  difference  between  the  capacity  of  the  benefit  and  the  burden  of 
covenants  to  run  with  land  where  no  privity  of  estate  exists,  is  law  on  this 
side  of  the  Atlantic.  The  tenant  in  fee  simple  of  a  tract  of  land  made  a 
lease  of  parcel  of  the  land,  to  be  used  for  the  sale  of  merchandize,  to  the 
plaintiff  in  the  action,  with  a  covenant  that  no  other  person  should  exercise 
the  same  trade  on  the  residue  of  the  tract.  Subsequently  the  lessor  who 
had  thus  covenanted,  sold  a  portion  of  the  same  tract,  not  including  the  par- 
cel leased,  to  the  defendant ;  Avho  thereon  entering,  exercised,  contrary  to 
the  intent  of  the  covenant,  the  same  trade  as  the  lessee  of  the  first  parcel. 
The  latter  thereupon  brought  his  action  of  covenant  against  him.  It  would 
seem  from  the  decision  of  the  Supreme  Court  of  New  York,  in  the  case  of 
Norman  v.  Wells,  13  Wendell,  136,  that  the  covenant  in  this  case  was  one 
which,  as  to  its  benefit,  was  capable  of  running  with  the  land  of  the  cove- 
nantee, since  it  affected  the  value  of  the  estate  granted  to  him,  and  conse- 
quently would  pass,  as  a  remedy  in  case  of  breach,  to  any  assignee  of  such. 
estate,  as  against  the  covenantor,  or  the  assignee  from  him  of  the  reversion. 
In  the  present  instance,  however,  the  question  was  as  to  the  passage  of  its 
burden  to  the  assignee  from  the  covenantor  of  other  land  not  including  such 
reversion.  The  parties  to  the  action  were  thus  entire  strangers  in  estate,  since 
of  course  the  fact  that  the  ownershipiof  both  parcels  of  land  (the  parcel  sold  in 
fee  and  the  parcel  leased  for  years,)  was  in  the  hands  of  the  covenantor  at 
the  time  of  the  covenant  made,  could  not  establish  a  privity  of  estate 
between  such  parcels  either  before  or  after  the  sale  ;  and  the  case  must 
therefore  be  viewed  as  if  there  had  been  no  lease  of  any  portion  of  the 
tract  to  the  plaintiff,  but  simply  as  a  covenant  entered  into  by  the  tenant  in 
fee  of  an  estate  with  a  stranger,  that  a  certain  thing  should  or  should  not 
be  done  on  the  land,  of  which  the  burden  was  sought  to  be  imposed  on  the 


110  smith's  leading  cases. 

assignee  of  the  estate.  We  have  seen  that  the  benefit  of  such  a  covenant 
will  pass  to  the  assignee  in  fee  of  the  land  ;  and  in  the  present  instance  the 
court,  in  accordance  with  the  view  of  the  English  law  presented  above,  held 
that  the  burden  would  not,  and  consequently  that  no  action  could  be  sup- 
ported against  the  defendant  to  charge  him  with  the  covenant  made  by  his 
vendor.  The  decision  of  the  Supreme  Court  of  Massachusetts  in  Plymouth 
V.  Carver,  16  Pickering,  must  be  regarded  as  establishing  the  same  point 
though,  in  another  form.  It  may  be  observed  that,  had  the  defendant  in  the 
case  of  Taylor  v.  Owens  accepted  an  assignment  of  the  reversion  of  the 
premises  leased  to  the  plaintiff  together  with  the  estate  in  fee  simple  in  the 
rest  of  the  land ;  then,  as  the  covenant  was  of  a  nature  to  run  with  land, 
(Norman  v.  Wells,)  it  would,  by  the  statute  32  Henry  8,  have  passed  with 
the  reversion  and  have  rendered  him  liable  for  the  breach  committed  by  the 
exercise  of  the  trade  against  which  it  provided.  A  re-assignment  of  the 
reversion  would,  however,  have  removed  this  liability,  since  the  obligation  it 
imposed  would  have  passed  to  the  new  assignee  leaving  the  land,  both 
directly  and  indirectly,  unaffected  by  its  burden. 

In  the  case  of  Scott  v.  Burton,  2  Ashmead,  324,  is  a  dictum,  asserting 
that  where  the  owner  of  land  conveys  a  portion  of  it  in  fee,  not  only  will  the 
benefit  of  the  covenants  contained  in  the  deed  run  with  the  land  conveyed, 
but  their  burden  will  run  Avilh  the  unconveyed  residue,  and  be  binding  on 
parties  who  take  such  residue  by  assignment.  As  this  opinion  is  contrary 
to  the  conclusion  already  expressed  in  this  note,  and  as  the  decisions  of  the 
New  York  Court  of  Chancery  in  Hills  v.  Miller,  3  Paige,  254,  and  Trustees 
of  VVatertown  v.  Cowen,  4  Paige,  510,  were  quoted  in  its  support,  it  may 
be  well  to  examine  those  cases. 

There  can  be  no  doubt  that  the  holder  of  a  corporeal  hereditament  may 
create  out  of  it,  by  way  of  grant  or  reservation,  any  of  the  different  incorpo- 
real hereditaments  with  which  it  is,  in  its  nature,  capable  of  being  affected. 
In  this  way  the  ownership  of  land  may  be  charged  with  rents,  commons, 
ways,  or  the  privilege  of  a  use  of  water,  light,  or  air.  Moreover,  with  the 
exception  perhaps  of  rents,  such  incorporeal  hereditaments  need  not  be  cre- 
ated as  exclusively  personal  rights,  but  may,  as  in  the  case  of  common 
appurtenant,  be  attached  to  other  corporeal  hereditaments,  so  as  to  vest  in 
succession  a  right  to  their  enjoyment  in  all  the  parties  to  whom  such  here- 
ditaments may  come  by  assignment.  North  Ipswich  Factory  v.  Batchilder, 
5  New  Hampshire,  192.  Nor  need  the  instrument  by  which  an  incorpo- 
real hereditament  of  this  sort  is  created  or  enlarged,  be  of  necessity  a  formal 
grant.  Although  in  the  guise  of  a  covenant,  yet  if  it  be  under  seal  and 
express  the  intention  to  grant,  the  effect  of  a  grant  will  be  given  to  it,  and 
rights  will  arise  under  it  by  assignment,  when  by  the  assignment  of  a  mere 
covenant  nothing  would  have  passed.  This  was  in  effect  the  decision  of 
the  court  in  Brewster  v.  Kitchen  already  cited,  where  though  Holt  pointed 
out  that  the  plaintiff  took  no  right  of  action  against  the  defendant  merely  by 
force  of  the  covenant,  the  court  decided  that  he  had  a  valid  right  of  action 
by  virtue  of  the  grant  to  which  that  covenant  amounted.  Had  he  brought 
covenant,  he  would  have  failed  :  as  he  merely  brought  an  action  to  establish 
his  right  to  distrain  to  the  amount  of  what  the  covenant  granted,  he  had 
judgment.  When  regarded  in  this  point  of  view,  the  decisions  in  the  New 
York  cases  cited  above,  are  fully  capable  of  being  supported  Ayithout  resort- 


spencer'scase.  Ill 

ing  to  the  anomaly  of  supposing  that  a  covenant  regarding  one  piece  of 
land,  can  by  any  possibility  pass  as  to  its  burden  to  the  assignee  in  fee  of 
such  land,  even  if,  in  consequence  of  its  affecting  th€  value  of  another  piece 
granted  to  the  covenantee  at  the  time  of  covenant  made,  it  can  be  construed, 
agreeably  to  the  decision  of  Norman  v.  Wells,  into  a  covenant  running  with 
the  latter.  Such  assignee  cannot  be  regarded  as  either  in  privity  of  con- 
tract or  estate  with  the  covenantee  tenant  of  the  land  granted;  for  his  assign- 
ment is  not  of  any  reversion  or  possibility  of  reverter  in  it,  but  of  a  distinct 
parcel,  as  unconnected  with  the  other  in  estate,  as  if  both  had  not  belonged, 
at  the  time  of  covenant  made,  to  the  same  person.  The  cases  of  Hills  v. 
Miller,  and  Trustees  of  Watertown  v.  Covven,  were,  however,  not  actions  of 
covenant,  but  bills  in  equity  for  an  injunction,  and  they  were  decided 
exactly  on  the  principle  of  Brewster  v.  Kitchell,  that,  taking  the  whole  of 
the  writings  under  seal  together,  there  appeared  to  have  been  an  easement 
granted  out  of  the  property  charged  by  the  bill,  which  had  come  by  assign- 
ment to  the  hands  of  the  defendant ;  and  as  this  easement  had  been  rendered 
by  the  intention  of  the  parties,  appurtenant  to  lands  granted  at  the  same 
time,  and  subsequently  conveyed  by  the  grantee  to  the  plaintiff,  the  latter 
recovered  on  the  grant,  though  he  could  not  have  recovered  on  the  covenant. 
It  may  be  observed,  that  there  is  another  ground  on  which  these  decisions  may 
be  supported.  The  terms  of  the  deed  amounted  to  a  dedication  to  the  public ; 
and  the  acts  committed  by  the  defendant  on  the  property  dedicated,  went  to 
defeat  such  dedication,  and  therefore  amounted  to  a  nuisance.  The  plaintiffs 
happened  thereby  to  sustain  special  damage,  and  consequently  were  invested 
with  the  right  to  bring  their  action  on  the  case  or  their  bill  in  equity,  even  inde- 
pendently of  their  estate  in  the  incorporeal  hereditament  created  by  the  grant. 
The  grounds  on  which  Chancery  will  afford  relief  on  such  covenants,  are 
strikingly  illustrated  by  the  case  of  Barrow  v.  Richard,  8  Paige,  351.  Two 
lots  were  sold  at  different  periods  out  of  the  same  tract  of  land,  and  the  deeds 
of  conveyance  contained  mutual  covenants  between  the  vendor  and  the  pur- 
chasers against  the  carrying  on  certain  offensive  trades  on  any  part  of  the 
premises  in  the  hands  of  either  of  the  parties.  Subsequently  the  second 
vendee  brought  his  bill  against  the  assignee  of  the  first,  for  relief  by  injunc- 
tion against  a  breach  of  the  covenant.  Agreeably  to  the  decision  in  Taylor 
V.  Owen,  the  benefit  of  the  covenant  had  not  under  these  circumstances 
passed  at  law  to  the  plaintiff  nor  its  burden  to  the  defendant,  although  on 
the  latter  point  the  Chancellor  expressed  a  different  opinion.  But  he  held 
that  the  default  in  the  legal  remedy  would  sustain  the  equitable  jurisdiction, 
and  that  as  the  undertaking  of  the  first  vendee  had  imposed  a  charge  in  the 
nature  of  an  easement  on  that  part  of  the  estate  sold  to  him,  and  attached  it 
to  the  portion  retained  by  the  vendor,  the  resulting  advantages  and  restric- 
tions would  be  enforced  by  Chancery  according  to  the  intent  of  the  cove- 
nant for  and  against  all  subsequent  assignees  of  either  parcel  of  the  land. 

On  the  whole,  therefore,  we  may  infer  that  the  burden  of  covenants 
charging  land,  made  by  the  owners  with  entire  strangers  to  the  land  so 
qharged,  will  not  run  with  the  land,  nor  rest  upon  the  parties  taking  it  by 
assignment,  even  when  the  covenantees  take,  by  virtue  of  the  deed  contain- 
ing the  covenant,  an  estate  in  other  and  distinct  land  belonging  to  the  cove- 
nantors. Moreover  the  original  covenantor  himself  will  not,  in  such  cases, 
be  liable  to  the  assignee  of  the  estate  granted  to  the  covenantee,  even  where 


112  smith's    LEADING    CASES. 

the  grant  creates  a  privity  of  estate  between  the  parties,  unless  when  the 
covenant  affects  the  value  of  the  grant,  and  thus  agreeably  to  the  decision 
in  Norman  v.  Wells,  becomes  capable  of  running  with  the  land.  If  there- 
fore the  owner  of  two  contiguous  estates  grant  one  of  them  in  fee,  and 
covenant  not  to  erect  buildings  on  the  whole  or  part  of  the  other,  the  covenant 
will  in  general  merely  be  binding  as  such  between  the  parties.  The 
assignee  of  the  estate  unconveyed  can  never  be  liable  under  it  to  an  action 
of  covenant,  nor  can  the  assignee  of  the  land  granted,  support  such  a  suit 
even  against  the  grantor,  unless  in  so  far  as  the  covenant,  although  to  be 
performed  apart  from  the  land,  in  consequence  of  affecting  its  value,  may 
be  construed  to  run  with  it.  When,  however,  such  has  been  the  intention 
of  the  parties,  the  covenant  will  be  taken  as  amounting  to  a  grant,  and  thus 
creating  out  of  the  unconveyed  estate,  an  incorporeal  hereditament  (in  the 
form  of  an  easement),  and  rendering  such  hereditament  appurtenant  to  the 
estate  conveyed.  From  thenceforth  all  future  assignees  of  the  estates  in 
question  will  be  regarded  as  possessing  the  rights  and  subject  to  the  obliga- 
tions which  the  title  or  liability  to  such  an  easement  creates.  It  must  be 
evident  that  the  same  general  principles  will  apply  when  the  covenant  is 
made  by  the  grantee  of  the  land  conveyed,  and  binds  him  to  avoid  or  per- 
form certain  things  with  regard  to  the  land  which  he  takes  by  the  convey- 
ance. As  the  burden  of  covenants  never  runs  with  Lnd  independently  of 
tenure,  the  subsequent  assignee  of  such  land  if  conveyed  in  fee,  can  never, 
where  the  principles  of  the  Statute  Gluia  Emptores  are  in  force,  be  liable  to 
an  action  on  the  covenant  as  such.  This  covenant  may  however  amount, 
as  between  the  original  grantor  and  grantee,  to  the  reservation  or  grant  of 
on  easement  appurtenant  to  other  land  belonging  to  the  grantor,  and  arising 
out  of  the  land  conveyed  to  the  grantee.  Where  this  is  the  case,  the  gene- 
ral law  applicable  to  easements  of  this  nature  as  already  laid  down,  will  of 
course  apply. 

In  thus  passing,  however,  from  the  question  as  to  the  transmission  with 
the  land  of  the  burden  of  covenants  made  by  tenants  in  fee  with  entire 
strangers,  to  that  of  covenants  entered  into  with  parties  from  whom  an 
estate  in  fee  passes  at  the  time  of  covenant  made,  the  case  becomes  much 
more  complicated.  At  common  law,  even  if  no  services  were  reserved  on 
a  feoffment  in  fee,  there  was  still  a  tenure  created  ;  for  the  feoffee  held  of 
the  feoffor  by  the  same  services  as  the  latter  of  the  superior  lord  ;  Lit.  sect. 
216;  2  Inst.  275.  511  ;  Coke  Lit.  143,  a.;  Spinks  v.  Tenant,  1  Rolle's 
Reports,  106.  This  tenure  always  arose  on  a  feoffrnent,  by  implication 
of  law,  unless  there  was  some  express  stipulation  to  the  contrary  ;  2  Inst. 
63.  275. 

It  necessarily  followed  from  this,  that  privity  of  estate  growing  out  of 
tenure,  existed  as  much  between  the  feoffor,  of  an  estates  and  those  to  whom 
he  conveyed  it,  when  the  feoffinent  was  in  fee  as  when  it  was  for  life. 
In  the  latter  case  there  remained  in  him  a  reversion  ;  in  the  former,  what  is 
perhaps  better  designated  a  possibility  of  reverter;  but  in  both,  the  nature 
of  his  privity  with  the  estate  conveyed,  was  such  as  to  entitle  him  to  homage 
or  fealty  from  the  party  to  whom  he  had  conveyed  it,  and  to  make  any  service 
charge  or  rent,  which  he  reserved  on  the  conveyance,  a  rent  service,  for 
which,  without  a  clause  of  distress  in  the  deed  under  which  it  arose,  he 
might  distrain  of  common  right.     Lit.  sect.  216;  Gilbert  on  Rents,  page 


spencer's   case.  113 

12. ;  Lit.  sect.  90.  It  follows  that  there  was  a  privity  of  estate  between 
the  "grantor  and  the  tenant  of  an  estate  conveyed  in  fee,  which  was  not 
destroyed  by  assignment,  since  the  former  might  still  distrain  on  the  land  in 
the  hands  of  the  assignee,  for  all  that  was  due  on  the.reservation  in  the  origi- 
nal conveyance.  Coke  Lit.  142  a.  No  doubt  therefore  can  exist,  that  this 
privity  of  estate  would  have  supported  at  that  period  in  England,  an  action  of 
covenant  against  the  assignee  of  a  tenant  in  fee  under  a  feoffiiient,  as  it 
still  dpes  against  the  assignee  of  an  estate  for  life  created  by  feoffiiient ; 
M'Murphy  v.  Minot,  4  New  Hamp.  R.  454  ;  even  where  no  reversion 
remains  in  the  feoffor.  The  law  with  regard  to  the  latter  class  of  estates, 
remaining  unaffected  by  the  statute  Q,uia  Emptores,  which  extended  only 
to  estates  in  fee,  indicates  what  was  the  common  law  as  to  those  estates, 
when  they  held  the  same  feudal  relation  to  the  feoffor  as  estates  for  life  ; 
statute  Westminster  3, .  18  Edward  cap.  3;  2  Inst.  504.  Before  the 
passage  of  that  stafute,  the  rights  of  a  feoffor  were  never  less,  and  were  in 
some  cases  greater,  towards,  a  feoffee  in  fee  holding  under  him,  than 
"towards  a  feoffee  for  life,(l)  and  we  must  therefore  presume  that  he  was  in 
such  privity  of  estate  with  the  assignee  from  either,  as  to  be  able  to  support 
an  action  against  him,  on  a  covenant  made  by  his  assignor,  to  whom  the 
first  feoffment  had  been  made.  But  the  statute  of  Quia  Emptores  having 
as  far  as  England  is  concerned,  destroj^ed  this  common  law  privity  of  estate 
between  feoffors  in  fee  and  those  who  are  enfeoffed  by  them  ;  and  conse- 
quently turned  by  construction  of  law,  all  rents  reserved  on  such  convey-. 
ances,  into  rents-seek,  or  rents-charge  ;  Gilbert  on  Rents,  page  14  ;  Lit. 
sect.  215,  216  ;  it  follows,  that  the  same  law  which  Lord  Holt  laid  down  in 
Brewster  v.  Kitchell,  as  applicable  to  covenants  made  by  the  tenants  of 
lands  with  those  who  have  never  been  in  possession  of  such  lands  is  equally 
true  with  regard  to  covenants  entered  into  by  grantees  in  fee  of  estates 
■with  their  grantors.  Such  is  the  legal  effect  of  the  case  of  Keppel  v. 
Bailey,  cited  by  the  English  editor  (supra,  page  [30]),  where  it  was  decided 
that  a  covenant  entered  into  by  the  proprietors  of  certain  iron  works,  not, 
to  use  any  other  means  of  transit  for  the  purpose  of  obtaining  lime  than  a 
railroad  belonging  to  the  plaintiff^,  was  not  of  a  nature-  to  pass  with  a  sub- 
sequent assignment  of  the  premises,  nor  to  bind  the  assignees.  No  doubr, 
the  law  would  have  been  held  tlie  same  way,  had  the  iron  works  been 
granted  by  the  covenantee  to  the  covenantor  at  the  time  of  covenant  made, 
liad  the  grant  been  such  as  to  create  no  tenure  or  privity  of  estate,  as  be-  ' 
tween  the  grantees  and  the  subsequent  assignees.  But  in  the  recent  casu 
of  Hemingway  v.  Fernandes,  15  Simons,  228,  where  the  plaintiff  had 
demised  land  to  the  proprietors  of  a  neighbouring  colliery,  to  be  used  for 
the  construction  of  a  railroad,  and  taken  from  the  lessees  a  covenant  for 
themselves  and  their  assigns,  that  they  would  carry  all  the  coal  obtained 
from  the  mines  then  worked,  or  others  thereafter  opened,  over  the  railway 
upon  the  premises  demised,  paying  the  lessors  a  certain  rent  per  ton,  it  was 
held,  that  the  covenant  was  of  a  natuTe  to  run  with  land,  and  that  its  burden 
would  pass  to  a  subsequent  assignee  of  the  railway  and  collieries,  and 
render  him  liable  for  its  fulfilment.  In  this  case,  it  is  obvious,  that  a  tenure 
was  created,  and  thus  the  case  was  taken  out  of  the  principal  difficulty  in 

(1)  The  lord  of  tenant  in  fee  was  entitled  to  homage  of  tenant  for  life,  merely  to  fealty^ 

Vol.  I.— 8 


114  smith's   leading   cases. 

Keppel  V.  Bailey,  and  brought  with  the  range  of  the  numerous  decisions 
which  render  the  assignee  hable  to  the  burden  of  covenants,  wherever  a 
privity  of  estate  subsist  between  him  and  the  original  grantor. 

The  Supreme  Court  of  Massachusetts,  in  Plymouth  v.  Carver,  16  Pick, 
appears  to  have  held  the  law  in  that  state  to  be  the  same  as  the  opinion  of 
Holt  indicated  it  to  be  in  England.  They  there  decided,  that  the  burden 
of  a  covenant  made  by  the  grantee,  in  fee  of  land,  with  the  grantor,  to 
maintain  a  highway  passing  by  the  land  granted,  would  not  run  to  the 
assignee  of  such  land,  or  render  him  liable  to  an  action  of  covenant. 

It  may  be  doubtful,  whether  such  a  covenant  is  capable  of  running  with 
the  land  under  any  circumstances  ;  but  the  court  seem  to  have  decided 
the  question  on  the  ground  of  the  relation  of  the  parties  to  each  other,  and 
the  absence  of  all  privity  between  them.  This  case,  of  course,  equally  proves, 
that  the  burden  of  a  covenant  made  by  a  tenant  in  fee,  with  a  stranger  from 
whom  no  estate  passes  at  the  time  of  covenant  made,  will  not  be  binding  on 
an  assignee  of  the  land,  and  may  be  cited  to  that  effect,  in  conjunction  with 
Taylor  v.  Owens. 

The  state  of  the  law  in  England,  by  preventing  the  vendors  of  real  pro- 
perty from  imposing  restrictions  binding  on  the  assignees,  from  the  first  ven- 
dees, as  to  the  manner  in  which  it  should  be  enjoyed,  would  have  led  to 
inconveniences  which  might  have  produced  a  change,  were  it  not  that  when 
lands  are  granted  there,  for  purposes  requiring  the  restraint  of  covenants 
running  with  land,  against  acts  injurious  to  the  other  grantees  of  the  same 
property,  they  are,  as  in  the  case  of  building  leases,  usually  conveyed  for 
long  terms  of  years,  and  thus  all  covenants  susceptible  of  running  with 
land,  are  made  obligatory  upon  subsequent  purchasers.  In  Pennsylvania, 
leases  for  long  terms  of  years  are  but  little  understood,  and  few  persons 
would  be  found  willing  to  accept  a  conveyance  of  any  thing  less  than  the 
fee.  As  the  statute  of  Q,uia  Emptores  is  not,  however,  in  force  in  that  state, 
it  would  seem  that  all  covenants  of  a  character  to  run  with  land,  under  any 
circumstances  whatever,  will  there  be  as  binding  upon  the  assignee  of  a 
grantee  in  fee,  as  upon  the  assignee  of  a  lessee  for  life  or  years.  Sergeant 
V.  Ingersoll,  1  Wharton,  338.  In  truth,  this  conclusion  is  rendered  neces- 
sary by  the  fact  that  an  action  of  covenant  may  be  maintained  in  that  state, 
against  the  assignee  of  land,  subject  to  a  rent  reserved,  on  the  prior  convey- 
ance in  fee  to  his  assignor,  on  a  covenant  for  the  payment  of  the  rent  in 
such  conveyance  ;  Royer  v.  Ake,  3  Pennsylvania  Reports,  461  ;  Herbaugh 
V.  Zentmyer,  2  Rawle,  159,  while  such  is  not  the  case  in  England,  and 
could  not  be  in  Pennsylvania,  if  no  privity  of  estate  existed  between  the 
grantor  of  such  an  estate,  and  the  grantee  and  his  assigns.  Of  course,  the 
same  law  which  applies  to  the  case  of  a  covenant  to  pay  rent,  must  hold 
good  in  that  of  other  covenants  capable  of  running  with  land,  to  the  assignee 
of  a  lease  for  life  or  years  ;  and,  consequently,  agreements  to  erect  back 
buildings,  or  not  to  erect  them,  to  keep  open  water-courses,  to  support  ways, 
and  even  to  grind  corn,  made  with  the  grantor  of  an  estate  in  fee,  at  the 
time  of  the  grant,  will,  in  that  state,  not  only  bind  the  grantee  making  such 
agreement,  but  all  persons  taking  by  assignment  from  him,  the  same  estate 
which  he  has  received.  This  was  first  ruled  in  the  case  of  Dunbar  v. 
Jumper,  2  Yeates,  74,  where  it  was  held,  that  on  a  conveyance  in  foe,  and 


spencer's  case.  115 

covenant  by  the  grantee  to  grind  corn  for  the  family  of  the  grantor,  an  action 
might  be  brought  against  the  assignee  of  the  grantee. 

These  principles,  and  the  conclusions  to  which  they  lead,  will  be  found 
stated  with  great  precision  and  force  of  argument,  by  Kennedy,  J.,  in 
delivering  the  opinion  of  the  court  in  the  case  of  IngersoU  v.  Sergeant,  1 
Wharton,  348.  The  decision  there  made,  appears  to  determine  the  follow- 
ing points. 

1st.  A  rent  reserved  on  a  conveyance  in  fee,  was  a  rent-service  at  com- 
mon law,  maintained  as  such  by  the  privity  of  estate  growing  out  of  the 
relation  of  lord  and  tenant,  arising  from  the  conveyance,  and  supported  by 
the  possibility  of  reverter  to  the  grantor,  in  case  of  a  failure  of  inheritable 
blood  on  the  part  of  the  grantee. 

2nd.  The  statute  of  duia  Emptores,  by  destroying  the  privity  of  estate 
which  arose  at  common  law,  on  such  conveyances,  and  removing  the  possi- 
bility of  a  reverter  in  case  of  an  escheat,  changed  all  rents  arising  to  the 
grantor  on  conveyances  in  fee,  into  rents-charge,  since  the  party  to  whom 
they  were  reserved,  was  no  longer  the  lord  of  the  grantee,  but  a  mere 
stranger. 

3rd.  The  statute  of  Gtuia  Emptores  has  evidently  never  been  in  force  in 
Pennsylvania ;  since  the  charter  of  Penn  provided,  that  the  lands  in  this 
state  which  were  granted  to  him  to  hold  of  the  crown  in  free  and  common 
socage,  and  by  fealty,  were,  upon  alienation,  to  be  held,  not  immediately  of 
the  king,  but  of  Penn  himself,  for  such  estates  as  he  should  deem  expedient ; 
the  statute  of  Gluia  Emptores,  to  the  contrary  notwithstanding.  This  abro- 
gation of  the  statute  Gluia  Emptores,  was  recognized  by  the  act  of  assembly 
of  the  year  1700,  which  provided  that,  in  default  of  heirs,  lands,  if  held 
immediately  of  the  proprietary,  should  go  to  him  ;  if  not  so  held,  then  to  the 
immediate  party  of  whom  they  were  held  ;  indicating  that  the  old  common 
law  principle  of  subinfeudation  existed,  not  merely  between  Penn  and  his 
immediate  alienees,  but  between  those  alienees  and  the  parlies  taking  under 
them.  Moreover,  in  the  case  of  Dunbar  v.  Jumper,  the  court  ruled  that  the 
burden  of  a  covenant  made  by  a  grantee  in  fee,  with  a  grantor,  ran  with  the 
land,  to  an  assignee  from  the  grantee ;  and  this  decision,  as  well  as  those 
sustaining  actions  of  covenant  for  rents  reserved,  on_  conveyances  in  fee, 
against  subsequent  assignees  in  fee,  which  would  not  be  good  in  England, 
can  only  be  supported  on  the  ground  of  a  privity  of  estate  irreconcileable 
with  the  existence  of  the  statute  Gluia  Emptores.  Royer  v.  Ake,  3  Penn- 
sylvania Reports,  461 ;  Herbaugh  v.  Zentmyer,  2  Rawle,  159. 

4th.  This  statute  not  being  in  force,  it  follows,  that  rents  reserved  on  con- 
veyances of  the  whole  fee,  remained  in  Pennsylvania  as  at  common  law  in 
England  ;  and  were  of  course  rents-service  capable  of  being  apportioned, 
and  entitled  the  holder  to  a  distress  of  common  right. 

The  effect  of  this  decision,  to  which  the  courts  had  been  gradually 
approaching  for  some  time,  is  to  remove  all  doubt  that  covenants,  capable, 
under  any  circumstances,  of  running  with  the  land,  will,  in  Pennsylvania, 
pass  as  to  their  burden  to  the  assignee  of  land  granted  in  fee,  provided 
they  are  made  between  the  grantor  and  the  grantee,  at  the  time  of  the 
grant. 

A  rent  granted  out  of  land  where  no  estate  passes  at  the  time  of  the  grant, 
is,  however,  in  Pennsylvania  as  it  was  at  common  law,  a  rent-charge,  and  by 


116  smith's  leading   cases. 

a  necessary  implication  from  the  decision  in  Ingersoli  v.  Sergeant,  insuscep- 
tible of  apportionment ;  so  that  a  release  of  part  of  the  land  would  release 
all.  A  covenant  to  pay  such  rent,  or'to  perform  an)'- other  act,  would 
necessarily  be  made  with  a  stranger  in  estate,  from  whom  the  covenantor 
takes  nothing  in  the  land,  and  would  therefore  be  merely  collateral  to  the 
land,  and  personal  to  the  covenantor,  and  could  not  agreeably  to  the  dicta  of 
Holt,  in  Brewster  v.  Kitchell,  of  Kennedy,  in  Ingersoli  v.  Sergeant,  the 
opinion  of  Piatt  in  his  Treatise  on  Covenants,  p.  475,  and  the  cases  of  Ply- 
mouth V.  Carver,  16  Pick,  and  Taylor  v.  Owens,  2  Blackford,  bind,  or  in 
any  way  affect  a  subsequent  assignee  of  the  land. 

The  law  in  Pennsylvania,  Avilh  regard  to  covenants  capable  under  any 
circumstances  of  running  with  land,  and  made  by  tenants  in  fee,  may  there- 
Tore  be  stated-as  follows  :  When,  at  the  time  of  making  such  covenant,  an 
estate,  whether  in  fee  simple  or  tail,  for  life  or  years,  passes  from  the  cove- 
nantee to  the  covenantor,  a  privity  of  estate  arises  between  the  parties, 
which  will  pass  to  the  assignee  of  the  land,  and  sustain  an  action  of  cove- 
nant, if  brought  against  him  ;  but  Avhere  no  estate  passes,  .the  covenant  is 
personal  to  the  party  making  it,  and  collateral  to  the  land  about  which  it  is 
made,  and  will  not  affect  the  assignee  of  such  land.  We  may,  consequently 
conclude  with  regard  to  that  state,  that  if  B.,  seised  in  fee  of  land  which  he 
does  not  derive  from  A.,  covenant  with  the  latter  to  pay  rent  out  of  the  land, 
or  to  erect  or  not  to  erect  houses  on  it,  the  assignee  of  such  land  will  not  be 
bound  by  the  covenant ;  but  that  if  B.,  at  the  period  of  covenanting  to  such 
effect,  receive  the  estate  to  which  the  covenant  relates  from  A.,  and  assign 
the  same  estate  in  quantity  of  interest  which  he  has  received  to  C,  the  lat- 
ter will  be  liable  to  an  action  of  covenant,  founded  on  privity  of  estate  ;  Hirst 
V.  Rodney,  1  Wash.  C.  C.  Reports,  375  ;  Royer  v.  Ake  and  Herbaugh  v. 
Zt'ntmyer,  supra,  95.  But  if  the  assignment  of  C.  be  of  an  estate  smaller 
in  quantity  of  interest,  he  will  not  be  liable  ;  the  Earl  of  Derby  v.  Taylor,  1 
-East;  Q,uackenboss  v.  Clark,  12  Wend.  555. 

It  will  be  observed  that  on  the  law  of  this  state  as  above  laid  down,  the 
action  in  the  case  of.  Keppel  v.  Bailj^  supra,  page  88,  could  not  for.  a 
moment  be  supported.  For  in  the  first  place,  there  was  no  conveyance,  and 
consequently,  no  privity  of  estate  between  covenantor  and  covenantee  ;  and 
in  the  second,  the  covenant  was  one  which  could,  under  any  circumstances, 
run  with  land. 

We  have  now  seen,  that  where  a  covenant  is  capable  of  running  with 
land,  the  assignees  of  the  land  may  take  advantage  of  its  benefit;  and  have 
examined  in  what  cases,  they  will  be  liable  to  the  burden  of  covenants 
made  by  their  assignors  ;  it  now  remains  to  determine  how  far  the  benefit  or 
burden  of  the  covenants  extends  to  the  assignees  from  the  covenantor  or 
covenantee,  when  not  possessed  of  the  land  at  the  time  of  assignment,  but 
merely  of  an  estate  in  reversion.  It  is  well  known  that  at  common  law  the 
assignees  of  revei^sions  could  not  take  advantage  of  covenants  made  with 
their  assignors,  and  that  this,  as  far  as  it  regarded  reversions  after  estates  for 
life  and  years,  was  helped  by  the  slat.  32  Henry  8,  cap.  34.  This  statute 
only  extended  to  such  reversions  ;  Coke  Lit.  215,  a. ;  Winter's  case.  Dyer, 
307,  a ;  Lewes  v.  Ridge,  Croke  Elizabeth,  863,  not  reaching  even  the 
case  of  the  reversion  subsisting  in  the  grantor  of  an  estate-tail;  and  of  course 
could  not  embrace  the  possibility  of  a  reverter  which  existed  in  a  feoffor  in 


spencer's   case.  117 

fee 'at  common  law,  Lit.  sect.  216,  but  which  had  been  destroyed  by  the 
statute  of  0,11  ia  Eraptores. 

It  follows,  that  in  England,  parties  claiming  by  assignment  from  cove- 
nantees who  have  made  a  conveyance  in  fee  at  the  time  of  receiving  the  cove- 
nant, remain  under  the  operation  of  the  common  law,  which  forbade  the 
assignment  of  a  chose  in  action,  and  are  consequently  incapable  of  suing 
the  covenantor  or  his  assigns  in  their  own  names.  Of  course,  the  assignee 
of  a  rent  reserved  on  a  conveyance  in  fee,  comes  within  this  rule,  and  can- 
not sue  the  tenant  of  the  land  on  his  covenant  for  the  payment  of  the  rent ; 
Milnes  v.  Branch,  5  iM.  &  S.  411. 

The  same  law  may  be  presumed  to  exist  generally  in  the  United  States. 
There  have,  however,  been  several  decisions  to  the  contrary  in  Penn- 
sylvania ;  Streaper  v.  Fisher,  1  Rawle,  155  ;  Miles  v.  St.  Mary's  Church, 
1  Wharton,  229.  In  all  of  them  it  was  held,  that  the  assignee  of  a  ground- 
rent  might  bring  covenant  against  the  tenant  of  the  land.  It  is  somewhat 
difficult  to  reconcile  these  cases  with  principle.  Although  in  that  state  the 
feudal  connection  between  the  grantor  of  an  estate  in  fee,  and  the  grantee 
would  seem  to  exist,  yet  the  assignee  of  such  grantor  took  at  common  law 
no  right  of  action  against  the  grantee  ;  and  we  have  seen  that  the  statute  of 
Henry  8  only  applies  to  reversions  after  estates  for  life  and  years  ;  Devisees 
of  Van  Rensselear  v.  Executors  of  Plainer,  2  Johnson's  Cases,  24  ;  Lewes 
V.  Ridge  ;  Winter's  case,  supra,  96 ;  and  it  would  therefore  appear  that 
whether  the  statute  of  Gluia  Emptores  be  in  force  or  not,  the  assignee  of  a 
ground-rent  should  not  be  entitled  to  maintain  an  action  of  covenant  in  his 
own  name.  As  the  rent  itself,  being  an  incorporeal  hereditament,  neces- 
sarily passes  to  him  by  the  assignment,  he  may  of  course  distrain  ;  or  an 
action  of  covenant  may  be  brought  in  the  name  of  the  person  to  whom  the 
covenant  to  pay  it  was  first  made.  Debt  on  the  obligation  created  by  the 
covenant,  he,  of  course,  has  not  in  the  absence  of  the  covenant  itself,  and 
debt  on  the  reddendum  only  existed  at  common  law,  in  the  case  of  rents 
reserved  on  leases  for  years  ;  and  tjie  statute  of  Anne,  which  merely  extend- 
ed the  latter  form  of  action  to  leases  for  life,  would  seem  not  to  be  in  force 
in  Pennsylvania.  Report  of  the  Judges  as  to  English  statutes  in  force  in 
Pennsylvania,  3  Binne}r,  593.  Abbot  of  Bury's  case,  Dyer,  33,  60,  per 
Baldwin,  C.  J. ;  Brindloss  v.  Philips,  Croke  Elizabeth,  895  ;  Bishop  of  Win- 
chester V.  Wright,  2  Lord  Raymond,  1056. 

It  would  appear,  therefore,  that  the  assignee  of  a  ground-rent,  on  the  strict 
principles  of  law,  cannot  bring  any  action  in  his  own  name,  to  recover  the 
rent  when  in  arrear,  but  must  resort  to  his  distress.  Great  doubt  has  even 
been  entertained  in  England,  whether  the  assignee  of  rent  reserved  on  the 
grant  of  an  estate  for  years,  could  support  any  action  to  recover  the  rent 
where  the  reversion  did  not  pass  by  the  assignment.  Austin  &  Smith's 
case,  1  Leonard,  315;  Robbins  v.  Warwick,  1  Keble,  sed  contra,  Ard  v. 
Watkins,  Croke  Eliz.  637.  651  ;  Allen  v.  Bryan,  5  B.  &  C.  512.  The 
authority  of  Littleton  and  Coke  is  decisive,  that  the  assignee  of  a  rent  reserv- 
ed on  the  conveyance  of  an  estate  in  fee,  was  without  remedy  of  any  sort, 
where  the  services,  and  consequently  the  possibility  of  reverter,  were  ex- 
pressly excepted  out  of  the  grant,  unless  he  obtained  seisin  of  the  rent  from 
the  tenant,  and  thus  acquired  the  power  of  resorting  to  an  action  real.  Lit. 
sec.  235;  Coke  Lit.  139,  b.      Where  the  services  are  not  excepted,  but  the 


118  smith's    LEADING    CASES. 

whole  interest  of  the  grantor  in  the  rent  and  its  incidents  is  passed,  as  is 
always  the  case  in  all  assignments  of  fee  farm  and  ground-rents  at  the  pre- 
sent day,  the  assignee  acquires  the  power  of  resorting  to  a  distress  ;  but,  as 
it  would  seem,  no  action  personal  of  debt  or  covenant  to  recover  the  rent 
when  in  arrear.  Of  this  opinion  would  seem  to  have  been  Sergeant,  J.,  in 
giving  the  decision  of  the  court  in  Kenege  v.  Elliot,  9  Watts,  262.  It  must 
be  observed,  however,  that  the  opinion  has  been  entertained,  that  the  assig- 
nee of  a  reversion  after  an  estate  for  years,  took  at  common  law  a  right  of 
action,  on  the  implied  covenant  of  the  lessee,  arising  out  of  the  reddendum, 
to  pay  the  rent,  or  fulfil  the  reservation  contained  in  it  in  any  other  manner  ; 
Vyvyan  v.  Arthur,  1  Barn.  &  Cres. ;  Harper  v.  Bird,  2  Levinz,  208  ;  and 
it  may,  therefore,  be  thought,  that  the  assignee  of  a  rent  reserved  on  a  con- 
veyance in  fee  would,  in  the  absence  of  the  statute  of  Q,uia  Emptores,  have 
in  Pennsylvania  a  right  of  action  on  the  implied  covenant  of  the  reddendum 
reserving  the  rent.  As,  however,  on  the  reddendum  of  a  grant  in  fee  or  for 
life,  not  even  an  action  of  debt  arose,  it  is  difficult  to  believe  that  there  could 
be  a  right  to  bring  an  action  of  covenant,  as  that  would  more  effectually  have 
contravened  the  feudal  policy  than  debt.  Gilbert  on  the  Action  of  Debt,  5  ; 
Harper  v.  Bird,  T.  Jones,  102.  It  is,  however,  on  this  ground  of  the  pas- 
sage, with  reversions  of  the  right  to  bring  an  action  on  an  implied  covenant 
in  the  reddendum,  and  not  under  the  statute  32  Henry  8,  which  is  wholly 
inapplicable,  that  the  cases  of  Streaper  v.  Fisher,  and  of  Miles  v.  St.  Mary's 
Church,  deciding  that  the  assignee  of  a  ground-rent  can  sue  in 'covenant, 
are  alone  capable  of  being  supported,  if  considered  as  vesting  exclusively 
on  common  or  statute  law.  But  in  that  state  the  courts  professedly  admin- 
ister equitable  principles  through  the  medium  of  common  law  forms,  and 
as  the  assignee  of  a  ground-rent,  when  destitute  of  the  remedy,  maj'^  no  doubt 
support  a  bill  in  equity  even  for  the  recover}'-  of  arrears  ;  there  would  seem 
to  be  no  sufficient  reason  why  he  should  not  attain  the  same  object  in 
Pennsylvania  by  an  action  of  covenant.  See  Livingston  v.  Livingston,  4 
Johns."  Ch.  287. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  Scott  v.  Lunt's 
Administrator,  7  Peters,  605,  held,  in  accordance  with  the  Pennsylvania 
decisions,  that  the  assignee  of  a  rent  reserved  on  a  conveyance  in  fee,  might 
bring  an  action  of  covenant  against  the  covenantor  or  his  personal  represen- 
tative. Story,  J.,  in  delivering  the  opinion  of  the  court,  appears  to  have 
arrived  at  the  somewhat  extraordinary  conclusion,  that  the  annexation  of  a 
condition  of  defeasance  to  a  grant  in  fee,  raised  some  sort  of  estate  or  inter- 
est, even  before  condition  broken  in  the  grantor,  and  moreover,  that  this 
interest  brought  an  assignee  from  him  within  the  32  Henry  8,  relating  to 
assignees  of  reversions.  In  support  of  this  doctrine  he  cited  the  case  of 
Havergill  v.  Hare,  Croke  Jac.  511,  S.  C.  2  Bulstrode,  350.  On  this  point 
it  is  only  necessary  to  observe,  that  in  Havergill  v.  Hare,  a  fine  was  levied, 
by  which  the  legal  estate  in  the  land  was  conveyed  to  the  use  that  the  tenant 
of  the  rent  and  his  assigns  might  enter  for  rent  arrear ;  and  thus  the  point 
of  law  there  discussed  Avas,  merely  whether  the  assignment  of  a  springing 
contingent  use,  when  coupled  with  an  estate  which  it  was  meant  to  secure, 
was  good,  if  made  before  the  use  became  vested  in  interest.  Moreover, 
there  was  in  that  case  no  condition,  and  still  less  anj^  reversion  in  the  tenant 
of  the  rent,  since  it  was  a  rent-charge  granted  out  of  land,  which  was  not 


spencer's   case.  119 

convoj^ed  by  the  grant.  And  of  course  no  condition  attached  to  or  affecting 
such  land  could  have  been  raised  by  the  deed  of  grant  of  the  rent.  The 
two  cases  of  Havergill  v.  Hare  and  Scott  v.  Lunt's  Administrator,  were  con- 
sequently not  in  pari  materia  ;  since  the  former  was  of  a  rent  granted  out  of 
land,  the  land  itself  remaining  unconveyed  ;  so  that  no  Condition  in  defea^ 
sance  of  the  estate  in  the  land  was  possible  ;  Lit.  sec.  349  ;  and  it  was  held 
by  all  the  justices,  that  none  existed  ;  while  in  the  latter  there  was  a  rent 
reserved  on  a  conveyance  of  the  land,  with  a  valid  common  law  condition 
of  re-entry.  One  decision  is  therefore  no  authority  for  the  other ;  and  it  is 
perfectly  evident  in  the  case  in  Peters,  that  the  grantor  could  have  had 
under  the  condition,  no  estate  or  interest  in  the  land,  even  after  breach,  if 
before  entry,  and  that  his  rights  under  it  were  incapable  of  assignment; 
while  even  if  he  had  possessed  the  interest  attributed  to  him  in  the  decision 
of  the  Supreme  Court,  it  would  not  have  come  within  the  statute  32 
Henry  8. 

Whatever  may  be  the  law  on  this  subject,  as  held  in  Pennsylvania  and 
the  courts  of  the  United  States,  it  has  been  clearly  and  expressly  decided  in 
New  York,  in  a  case  of  great  hardship  to  the  unsuccessful  party,  that  the 
assignees  of  a  fee  farm  or  ground-rent,  are  not  within  the  statute  32  Henry 
8,  and  cannot  recover  in  an  action  of  covenant  against  the  executor  of  the 
deceased  tenant  in  fee  on  an  express  covenant  made  by  the  testator.  Devi- 
sees of  Van  Rensselaer  v.  Executors  of  Platner,  2  Johnson's  Cases,  24.  It 
was  not  directly  decided  that  the  action  could  not  be  maintained  against  the 
tenant  in  fee  then  in  seisin  of  the  estate  ;  but  it  must  certainly  be  inferred 
from  the  fact  of  the  case  and  the  language  of  the  court,  since  the  plaintiffs, 
who  were  devisees  of  the  rent,  being  held  not  within  the  statute  as  to  assig- 
nees of  reversions,  the  case  was  said  to  be  at  common  law,  and  stronger 
against  them  than  if  they  had  been  assignees  of  a  reversion  after  an  estate 
for  life  or  years,  and  brought  an  action  of  covenant  against  the  tenant  of  such 
estate  before  the  statute.  Such  an  action  would  certainly  have  been  bad. 
In  the  previous  case  of  Ex'ors  of  Van  Rensselaer  v.  Ex'ors  of  Platner,  in  the 
same  volume  of  reports,  it  had  been  held,  that  the  defendants  in  the  present 
action  were  liable  on  the  covenant ;  so  that  if  the  right  of  suit  on  such  cove- 
nant had  passed  to  the  plaintiffs  with  the  ground-rent  under  the  devise, 
judgment  must  have  been  for  them.  In  fact,  the  court  in  deciding  that  the 
assignees  under  the  devise  could  not  sustain  their  action  of  covenant  against 
the  executors  of  the  covenantor,  necessarily  decided  that  they  could  not 
have  sued  the  covenantor  himself,  had  he  been  living,  or  his  assignee,  now 
that  he  was  dead  ;  for  the  executors  must  of  course  be  always  liable  on  an 
express  covenant  of  their  testator  for  the  payment  of  monej'.  This  case  is 
directly  opposed  to  the  decision  in  7  Peters,  and  appears  to  proceed  upon 
the  only  sound  view  of  the  law. 

Although  it  does  not  appear  that  there  are  any  decisions  on  this  particular 
point  in  the  other  states,  yet  it  would  seem,  on  general  principles,  and  from 
the  cases-already  quoted,  that  in  all  those  states  of  the  Union  where  the 
common  law  forms  the  basis  of  the  system  of  jurisprudence,  and  where  there 
are  no  express  and  peculiar  statutory  enactments  to  the  contrary,  the  tenants 
of  rents  in  fee  issuing  out  of  estates  held  in  fee,  cannot  bring  an  action  of 
debt  on  the  reddendum  against  the  tenants  of  the  lands  charged  with  such 
rents.     The  cases  of  Milnes  v.  Branch,  5  Maule  &  Selwyn,  supra,  89,  and 


120.  smith's   leading   cases. 

the.  devisees  of  Van  Rensselaer  v.  Plainer,  appear  to  show  that  the  cove- 
nants made  wiih  the  original  holders  of  such  rents,  cannot  run  with  the 
rents  themselves,  or  be  transferred  to  the  assignees  under  any  form  of  assign- 
'ment  whatever;  and  it  would  consequently  seem  that  the  latter,  as  a  general 
proposition,  can  bring  no  action  of  covenant,  in  their  own  names  for  rent 
arrear.  Of  course,  they  cannot  be  in  a  better  position,  as  it  respects  an  action 
of  debt,  than  the  parties  from  whom  they  take  by  assignment. 

Agreeably  to  the  principles  of  the  common  law  as  already  stated,  to  pass 
to  a  third  party  the  right  of  action  on  a  covenant,  there  must,  in  all  cases, 
have  been  a  conveyance  of  some  definite  estate.  The  covenant  by  itself, 
whatever  might  be  its  nature,  was  necessaril}'^  incapable  of  assignment 'by 
deed, or  parole  ;  but  if  it  were  attached  to  an  estate  in  land,  any  assignee  of 
the  land  unavoidably  took  with  it  the  covenant. 

It  follows  as'  a  consequence,  from  this,  that  while  between  the  original 
grantor  and  grantee  of  an  estate,  a  covenant  could  never  be  called  into  being 
without  deed  ;  yet  if  it  were  capable  of  running  with  land,  any  subsequent 
assignment  of  the  estate,  even  by  parol,  caiTied  with  it  to  the  assignee,  a 
right  of  suit  on  the  covenant.  A  deed,  although  necessary  to  create  the 
covenant,  was  yet  unnecessary  to  transmit  it ;  and  where  livery  of  seisin 
was  made,  inoperatir^e.  Lmcoln  College  case,  3  Coke  63  ;  Noke  v.  Awder, 
Croke  Eliz.,  373.  457. 

It  was  an  inevitable  deduction  from  these  principles,  that  as  the  covenant 
did  not  pass  by  the  deed  from  the  original  grantee  of  land  to  the  assignee 
from  him,  but  only  with  the  land  when  conveyed,  whether  by  deed  or  not ; 
or  in  other  words,  as  the  covenant  did  not  and  could  not  pass  by  any  form 
of  conveyance,  but  merely,  as  an  incident  to  the  land  which  such  convey- 
ance passed,  so  when  the  orignal  grantee  took  no  estate  under  the  grant  to 
him  in  the  deed  containing  the  covenants,  no  subsequent  assignment  by 
him  could  transfer  them  to  the  assignee.  Being  incapable  of  a  direct  trans- 
fer, they  could  not  pass  by  force  of  the  assignment  itself,  nor  could  they  run 
with  the  land,  which  the  grantee  had  not  to  convey. 

When,  therefore,  it  appeared'  on  the  face  of  the  declaration,  that  the 
lessee  of  land,  under  whom  the  plaintiff  in  an  action  brought  on  the  cove- 
nants in  the  lease  against  the  lessor,  claimed  by  assignment,  took  no  estate 
by  the  demise,  the  court  held  that  the  action  could  not  be  maintained. 
Noke  V.  Awder,  Croke  Eliz.  373.  .  The  ground  of  their  opinion  was,  that 
the  covenants  could  not  have  run  with  the  land  linder  the  assignment  to  the 
plaintiff,  since  there  was  no  land  on  which  it  could  operate,  and  it  was  inca- 
pable of  passing  the  covenant  by  its  direct  effect  as  an  assignment. 

This  doctrine  that  covenants  cannot  pass  under  the  operation  of  an  assign- 
ment, unless  the  assignment  transfers  some  estate  in  land  with  which  they 
may  run,  was  again  applied  in  the  case  of  Andrews  v.  Pearce,  4  Bos.  & 
Pul.  162.  The  tenant  in  tail  of  lands  made  a  lease  for  ninety -nine  years, 
with  a  covenant  for  quiet  enjoyment.  Subsequently  to  his  death,  whereby 
the  term  was  avoided,  the  lessee,  who  continued  in  possession,  assigned  his 
estate  in  the  land  to  the  plaintiff  against  whom  the  party  entitled  on  the 
•expiration  of  the  entail  having  recovered  possession  in  ejectment  ;  the  pre- 
sent action  was  brought  on  the  covenant,  against  the  executor  of  the  lessor. 
The  plea  of  the  defendant  having  averred,  what  indeed  appeared  from 
'he  declaration,  that  the  title  of  the  lessor  determined  before  the  assign- 


spencer's  case.  121 

ment,  the  plaintiff  demurred  ;  and  argued  in  support  of  the  demurrer  that 
the  defendant  was  estopped  by  the  indenture  of  lease  from  showing  that  his 
testator's  title  did  not  extend  to  making  a  good  lease  for  the  whole  term 
demised.  -The  court  however,  without  taking  notice  of  this  objection,  deci- 
ded that  "as  it  appeared  from  the  pleadings  that  no  estate  in  the  land  passed 
by  the  assignment,  the  naked  covenant  could  not  by  itself  be  assigned,  and 
therefore  that  the  plaintiff  was  not  entitled  to  recover. 

In  the  case  of  Nesbit  v.  Montgomery,  1  Taylor,  84,  will  be  found  a  judg- 
ment supporting  and  illustrating  this  doctrine  with  great  force  and  precision 
of  argument  and  language.  An  action  of  covenant  was  brought  by  the 
assignee  in  fee  of  an  estate,  who  had  received  a  conveyance  from  the  origi- 
nal grantee  then  in  possession  of  the  estate  assigned  against  the  first  grantor, 
on  a  covenant  for  quiet  enjo3'^ment  in  his  original  deed  of  grant.  The  decla- 
ration set  out  the  existence  of  a  title  paramount  to  that  of  the  grantor  and 
an  eviction  of  the  assignee  under  it,  as  it  thus  appeared  that  the  grantee 
had  no  estate  in  the  land  at  the, time  of  the  assignment,  having  taken  nothing 
under  the  original  grant  save  a  bare  possession,  the  court  held  that  the 
•  covenant  could  not  pass  to  the  assignee  from  him.  To  pass  the  covenant, 
it  was  said,  required  a  transfer  of  the  land  since  it  Avas  incapable  of  assign- 
ment in  itself.  A  similar  point  was  determined  by  the  Supreme  Court  of 
Pennsylvania,  in  the  case  of  Watson  v.  Blaine,  12  S.  &  R.  131.  139,  where 
it  was  determined  that  a  covenant^hould  run  with  land  it  must  be  attached 
jto-  some  legal  estate,  and  that  the  existence  of  a  mere  equitable  interest  was 
not  sufficient. 

The  same  law  will  be  found  recognized  or  applied  in  the  cases  of 
Beardsley  v.  Knight,  4  Vermont,  471 ;  Nesbit  v.  Brown,  1  Devereux's 
Equity  Rep.  30  ;  Randolph  v.  Kinney,  3  Randolph,  39G  ;  Allen  v.  Wooley, 
1  Blackford,  149;  Whitton  v.  Peacock,  2  Bing.  N.  C.  411  ;  Green  v.  James, 
6M..&  W.  665. 

The  consequences  of  this  doctrine  at  the  present  day  are  very  important. 
No  inconvenience  could  arise  from.it  under  the  old  common  law  except  in 
the  case  of  terras  for  years,  when  we  have  seen  its  effects  in  defeating  a 
recovery  in  Noke  v.  Awder.  But  to  conveyances  of  freeholds  it  did  not 
apply  ;  as  they  were  conveyed  by  livery  of  seisin,  an  actual  estate  although 
commencing  by  tort  was  in  all  cases  transferred  to  the  first  feoffee  and  by 
him  to  any  subsequent  assignee  of  the  land.  Of  course  when  a  feoffment 
was  made,  although  the  feoffor  might  have  previously  had  nothing  in  the 
land,  the  feoffee  took  an  estate  of  freehold  which  was  susceptible  of  being 
transferred  to  a  second  feoffee,  and  carrying  with  it  all  warranties  and  cove- 
nants made  by  the  original  feoffor. 

But  in  conveyances  taking  effect  under  the  statute  of  uses,  as  must 
all  those  which  are  intended  to  pass  an  estate -of  freehold  and  are  unaccom- 
panied by  Itvery,  nothing  passes  to  the  vendee  save  only  the  estate  actually 
and  legally  possessed  by  the  vendor.  Of  course,  therefore,  in  the  very  case 
in  which  the  title  to  an  estate  totally  fails,  and  in  •\yhich  the  purchaser  who 
has  taken  it  on  the  security  of  the  covenants  for  title  entered  into  by  a  pre- 
vious vendor,  most  requires  the  assistance  of  the  principle  which  gives  to 
an  assignee  the  right  to  sue  on  the  engagements  for  indemnity  given  to  his 
assignor,  he  is  left, u-nder  the  operation  of  the  doctrine  of  Noke  v.  Awder, 
as  applied  to  our  modern  system  of  conveyancing,  wholly  without  remedy. 


122  smith's    leading   cases. 

It  would  moreover  seem,  that  in  a  suit  thus  brought  by  the  assignee  of 
land  on  the  covenants  of  the  original  vendor,  he  cannot  take  advantage  of 
the  doctrine  of  estoppel  to  prevent  the  defendant  from  setting  up  as  a 
defence,  that  no  estate  passed  by  his  deed  to  the  assignor.  As  the  failure 
of  the  title  must  be  set  forth  in  the  declaration,  since  a  mere  statement  of 
eviction  without  averment  that  it  was  under  title  paramount,  will  not  be 
sufficient;  Patton  v.  xM'Farlane,  3  Penna.  419;  Kelly  v.  The  Church,  2 
Hill,  105;  the  plaintiff  of  course  cannot,  in  opposition  to  his  own  aver- 
ment, rely  upon  the  estoppel  to  support  the  title.  Moreover,  as  a  mere 
stranger  cannot  avail  himself  of  an  estoppel,  the  plaintiff  who,  by  his  own 
showing,  has  never  been  in  of  any  estate  from  the  defendant,  cannot  con- 
clude the  latter  from  showing  the  truth  of  the  matter  to  the  court  by  his 
plea,  if  it  be  not  fully  set  out  already  in  the  declaration  of  the  plaintiff; 
Nesbit  V.  Montgomery,  1  Taylor,  84;  Andrew  v.  Pearce,  1  Bos.  &  Pul. 
158.  It  has  been,  however,  determined,  that  when  the  assignee  was  pre- 
vented from  taking  advantage  of  a  covenant  by  the  want  of  any  estate  in 
the  land  on  the  part  of  his  assignor,  with  which  the  covenants  could  run, 
equity  would  relieve  him  against  the  original  vendor  by  whom  the  covenant 
had  been  made,  and  throug-h  whose  default  the  deed  containing  it  had  failed 
to  convey  the  land.  Nesbit  v.  Brown,  1  Devereux's  Equity  Reports,  30. 
An  opposite  opinion  has  been  held  in  Virginia,  where  the  court  seemed  to 
be  of  opinion,  that  the  right  of  a  complainant  in  equity  to  sue  on  covenants 
not  orignally  made  with  himself,  was  to  be  determined  by  deciding  whether 
they  had  run  with  an  estate  in  land,  so  as  to  give  him  the  power  of  bring- 
ing an  action  at  law.     Randolph  v.  Kinney,  supra. 

Notwithstanding  what  has  been  stated  above,  there  does  not  appear  to  be 
any  reason  why  an  assignee  who  has  taken  an  estate  by  assignment  from  a 
vendee  holding  under  a  deed  containing  covenants  for  title,  should  not  main- 
tain an  action  on  the  covenants,  where  any  interest  whatever  in  the  land 
has  passed  to  him  by  the  assignment,  although  inferior  in  quantity,  to  the 
estate  which  the  deed  to  the  first  vendee,  purported  to  convey,  and  termi- 
nated by  an  eviction  under  a  title  paramount  accruing  subsequently  to  the 
assignment.  Thus  in  the  case  of  Andrews  v.  Pearce,  already  cited,  if  the 
death  of  the  tenant  in  tail  who  granted  the  original  lease  for  years  to  the 
assignor  of  the  plaintiff  in  the  action,  had  not  occurred  until  subsequently  to 
assignment,  there  would  seem  no  reason  why  the  latter  should  not  have 
recovered  for  the  breach  of  the  covenant  by  his  subsequent  eviction.  An 
actual  chattel  interest  in  the  land  would  have  passed,  and  would  have  car- 
ried with  it  the  covenant,  notwithstanding  its  termination  by  a  subsequent 
event.  And  such  has  been  the  recent  determination  of  this  point  in  the  case 
of  Williams  v.  Burrill,  1  C.  B.  401.  433,  in  which  it  was  held,  that  where 
the  estate  of  the  assignee  did  not  become  void  until  after  the  assignment, 
he  was  entitled  to  maintain  an  action  on  a  covenant  running  with  the  land, 
against  the  executor  of  the  grantor. 

It  cannot  however  be  considered  as  settled  what  amount  of  interest  in  the 
land  must  pass  to  carry  with  it  a  covenant,  nor  whether  a  covenant  for  the 
security  of  a  greater  estate  could  run  to  the  assignee  of  a  mere  estate  at 
will,  if  the  covenantee  took  under  the  deed  containing  the  covenant  nothing 
more.  From  the  authority  of  the  cases  quoted  above,  we  may  however  con- 
clude, that  when  nothing  but  a  bare  possession  passes  by  the  conveyances 


SPENCERS    CASE.  123 

from  the  covenantor  'to  the  covenantee,  and  from  the  latter  to  a  subsequent 
assignee,  the  covenant  cannot  pass,  either  by  the  direct  or  indirect  opera- 
tion of  the  assignment. 

This  point  has,  notwithstanding,  been  decided  the  other  way  by  the 
Supreme  Court  of  New  York,  in  opposition  to  authority,  and,  as  it  would 
seem,  to  principle.  Beddoe's  Executors  v.  Wadsworth,  21  Wendell,  120. 
An  action  having  been  brought  on  a  covenant  of  warranty  by  the  assignee 
of  land  against  the  grantor,  who  had  made  the  covenant,  the  defence  taken 
was,  that  the  latter  had  no  estate  whatever  in  the  land  at  the  time  of  the 
grant  made  to  the  party,  under  whom  the  plaintiff  claimed  as  assignee;  and 
that  in  consequence  the  covenant  could  not  subsequentl}^  have  to  run  to  such 
assignee,  since  there  was  no  estate  for  it  to  run  with.  The  court  held  that, 
although  nothing  had  passed  by  the  deed  itself,  yet  that  the  possession 
having  been  delivered  under  it  by  the  defendant  to  the  grantee,  the  latter 
took  a  sufficient  estate  merely  by  virtue  of  this  possession,  to  carry  with  it 
the  covenant  of  warranty  to  the  plaintiff,  assignee  from  him. 

In  the  recent  case  of  White  v.  Whitney,  3  Metcalf,  83,  the  Supreme 
Court  of  Massachusetts  decided,  that  covenants  capable  of  running  with 
land,  would  pass  by  the  assignment  of  an  equity  of  redemption,  in  a  case 
where  no  other  or  legal  estate  had  passed  to  the  assignor,  in  the  original 
deed  of  grant,  containing  the  covenants.  It  was  also  held,  that  even  if  the 
grantee  holding  land  under  a  deed,  passing  the  legal  title,  mortgaged  the 
land  to  A.  and  subsequently  assigned  the  equity  of  redemption  to  B.,  both 
mortgagee  and  assignee  would  be  entitled  to  sue  on  the  covenants  for  title, 
according  to  their  respective  rights  in  the  estate. 

In  deciding  that  the  assignment  of  an  equitable  estate,  will  pass  to  the 
assignee  the  right  of  suit,  on  covenants  contained  in  a  prior  deed,  grantino- 
to  the  assignor  the  legal  estate  in  the  same  land,  this  case  would  seem  to 
have  no  other  support  in  the  decisions  of  courts  proceeding  solely  on  common 
law  principles  and  remedies,  than  the  case  of  Beddoe's  Executors  v.  Wads- 
worth,  and  to  be  in  direct  opposition  to  the  general  principles  of  the  other 
cases  cited  above.  At  the  same  time,  it  must  be  admitted,  that  it  is  sup- 
ported by  considerations  of  convenience,  difficult  to  resist;  since,  from  the 
frequent  occurrence  of  mortgages,  the  passage  of  covenants  with  the  assign- 
ment of  land,  must  be  seriously  impeded,  if  they  are  not  held  capable  of 
running  with  an  equity  of  redemption.  There  would  seem  to  be  no  doubt, 
that  they  pass  of  necessity,  both  as  to  their  benefit  and  burden,  with  the 
legal  estate,  taken  under  a  mortgage,  by  the  mortgagee.  M'Murphy  v. 
Minot,  4  New  Hampshire  Reports,  454.     Carvis  v.  M'Clary,  5  Id.  529. 

The  doctrine  of  Beddoe's  executors  v.  Wadsworth,  has  been  also  sanc- 
tioned by  a  recent  decision  of  the  Supreme  Court  of  Massachusetts,  so  far 
as  it  is  involved  in  holding  that  a  possessory  title  acquired  by  an  entry  with- 
out right,  not  amounting  to  a  disseisin  of  the  real  OAvner,  but  good  against  all 
the  rest  of  the  world,  is  a  sufficient  estate  in  land  to  carry  with  it  a  cove- 
nant of  warranty  from  a  grantee  to  a  subsequent  assignee  from  him,  and 
thus  entitle  the  latter  to  maintain  an  action  against  the  grantor.  Slater  v. 
Ravvson,  6  Metcalf,  439. 

There  are  moreover  some  limits  even  at  common  law  to  the  proposition 
advanced  by  the  English  editor  (supra  page  107)  that  a  covenant  will  not 
run  with  an  estate  claimed  only  by  estoppel.     In  all  cases  where  the 


124  smith's  leading  cases. 

estoppel  of  a  conve3'ance  of  land  in  ^vhich  the  grantor  had  nothing,  takes 
effect  upon  an  estate  subsequently  acquired,  and  actually  transfers  it  to  the 
grantee,  (see  note  to  Duchess  of  Kingston's  case,  vol.  2d,)  the  covenants 
contained  in  the  original  grant  will  attach  themselves  to  the  estate  thus 
arising,  and  will  pass  to  any  subsequent  assignee  of  the  estate  itself,  or  of 
the.  reversionary  interest  out  of  Avhich  it  is  carved  ;  Webb  v.  Austin,  7 
M;  &  G.  700. 

The  case  of  Beardsley  v.  Knight,  4  Vermont,  471,  presents  some  points 
of  law  bearing  on  this  subject,  which  merit  examination.  The  court  there 
decided,  that  a  full  legal  title  to  the  land  must  pass  by  the  assignment  in 
order  to  carry  with  it  a  covenant,  and  that  an  instrument  in  writing  with  a 
scroll  made  by  the  pen  affixed,  within  which  was  written  the  word  seal, 
could  not  convey  such  a  title.  They  further  held  that  the  equitable  estate 
which  undoubtedly  passed,  although  accompanied  by  seventeen  years'  quiet 
possession  in  the  assignee,  would  not  enable  him  to  sue  in  his  own  name, 
even  on  covenants  running  with  the  land,  made  by  the  defendant  in  the 
action  at  the  time  of  the  original  conveyance  by  deed  from  him  to  the 
grantee,  under  whom  the  plaintiff  claimed.  As  it  is  so  far  from  being  true, 
that  a  deed  was  ahvays  necessary  at  common  law  to  pass  the  title  to  land  ; 
that  it.Avas  never  necessary  when  the  estate  was'  actually  in  possession  of 
the  grantor,  and  as  the  conveyance  in  the  present  case  was  a  valid  bargain 
and  sale,  both  under  the  statute  of  uses  and  that  of  frauds,  neither  of  which 
require  a  deed  to  raise  a  use  and  transfer  the  legal  title,  it  is  difficult  to 
understand  that  the  land  did  not  pass  absolutely  to  the  plainlitf,  whether  the 
instrument  were  sealed  or  not,  unless  there  be  some  statute  in  force  in  Ver- 
mont, analogous  to  the  27  Henrj'^  8,  c.  16,  and  requiring  a  bargain  and  sale 
to  be  under  seal.  There  can  be  no  doubt,  that  there  passed  an  equitable 
title,  accompanied  by  possession,  and  the  court  must  be  considered  as 
deciding  in  accordance  with  the  general  current  of  authority,  though  in 
opposition  to  Beddoe's  Executors  v.  Wadsworth,  that  such  a  title,  even 
when  so  accompanied,  will  not  carry  a  covenant  with  it,  though  of  a  cha- 
racter to  run  with  land  and  created  by  the  deed  originally  conveying  the 
property.  The  court  would  seem  to  have  thought  that  when  a  party  wished 
to  take  advantage  of  covenants  created  by  deed,  as  running  with  land  under 
a  subsequent  conveyance  to  himself,  he  must  show  that  such  conveyance 
Avas  by  deed. .  This  opinion  seems  altogether  unfounded,  since  at  common 
law  covenants,  although  requiring  a  deed  to  call  them  into  being  in  the  first 
instance,  ran  with  the  subsequent  conveyance  of  land,  when  made  by  a  parol 
assignment  of  a  chattel  interesftherein,  or  a  feoffment  of  the  freehold  with- 
out deed  ;  Lincoln  College  Case,  3  Coke,  63  i  Awder  v.  Noke,  Croke  Eliz. 
373. 

In  Wheelock  v.  Thayer,  16  Pick.  69,  it  was  held  that  the  grant  of  a  right 
to  draw  a  certain  amount  of  water  from  a  dam  did  not  pass  an  estate  capable 
of  carrying  a  covenant  of  warranty  to  the  assignee  of  the  grantee.  A  cove, 
nant  wilt  not  run,  it  was  said,  save  with  lands  or  tenements.  The  same 
point  has  been  determined  in  Connecticut,  Mitchell  v.  Warner,  5  Connec- 
ticut, 497 ;  but  the  court  there  went  to  the  length  of  deciding  that  a  cove- 
nant of  warranty  in  a  deed  of  lands  did  not  embrace  water  resting  on  the 
land ;  that  it  was  not  broken  by  the  existence  of  a  right  in  a  third  party  to 
enter  upon  the  lands  warranted  and  draw  off  the  Avater,  nor  by  an  actual 


spencer's   case.  125 

entry  and  diversion  of  the  water  in  pursuance  of  such  right;  and  that  the 
assignee  from  the  original  grantee  of  th-e  land,  even  if  the  circumstances 
amounted  to  a  breach  of  the  warranty,  could  not  sue  on  it,  since  though  it 
ran  with  land,  it  did  not  run  with  water,  and  the  action  related  to  water. 
The  same  law  was  declared  to  be  applicable  to  a  covenant  for  quiet  enjoy- 
ment. 

The  distinctions  of  the  latter  of  these  cases  are  certainly  ill  founded ; 
and  it  would  appear  that  the  general  principle  that  covenants  will  not  run 
with  inheritances  incorporeal,  is  not  law.  In  a  most  carefully  considered 
decision,  the  C.  B,  in  the  case  of  Bally  v.  Wells,  3  Wilson,  26,  determined 
tRat  covenants  are  as  capable  of  running  with  incorporeal  hereditaments  at 
common  law  as  with  land;  and  that  their  capacity  for  being  transferred 
on  the  assignment  of  either  species  of  estate  is  to  be  decided  by  the  same 
rules. 

An  argument  might,  perhaps,  be  drawn  from  this  determination  in  favour 
of  the  idea,  that  a  rent  in  fee,  called  into  being  by  a  grant  or  reservation, 
will  carry  with  it  to  an  assignee,  the  right  to  sue  on  a  covenant  for  its  pay- 
ment. A  covenant  made  for  the  benefit  of  an  inheritance  in  land,  will 
undoubtedly  pass  with  a  conveyance  of -the  inheritance,  under  all  circum- 
stances ;  and  in  Bally  v.  Wells,  the  court  were  of  opinion,  that  inheritances, 
corporeal  and  incorporeal,  are,  in  general,  on  the  same  footing j  but  what- 
ever the  law  may  be  on  the  subject  of  rents,  unconnected  in  their  creation 
with  reversions,  it  would  seem,  that  if  originally  coupled  either  vvith  them, 
or  with  the  possibility  of  reverter  subsisting  at  common  law  in  the  grantor, 
after  a  feofTment  in  fee,  and  subsequently  separated  by  assignment,  the 
assignee  will  take  no  right  of  suit  on  covenants  to  pay  them.  Lit.  sect.  235. 
Coke  Litt.  159.  Of  course,  when  the  lessor  of  an  estate  for  years  assigns 
the  rent,  keeping  the  reversion  in  his  hand,  the  assignee  cannot  bring  cove- 
nant for  the  non-^oayment.  Allen  v.  Wooley,  1  Blackford,  149.  Demarest 
V.  Willard,  8  Cowen,  206.  In  truth,  it  is  very  evident,  that  as  at  common 
law  the  assignment,  both  of  rent  and  reversion,  did  not  carry  with  it  an 
express-'covenant,  though  for  the  payment  of  the  rent,  and  the  benefit  of  the 
reversion,  so  the  assignment  of  the  rent,  after  seyerance  from  the  reversion, 
cannot  have  any  greater efl^ect  in  transmitting  the- covenant. 

In  delivering  the  opinion  of  the  court,  in  a  recent  case  of  Willard  v.  Till- 
man, 2  Hill,  276,  it  was  held  by  Bronson,  J.,  that  a  covenant  for  the  pay- 
ment of  rent  would  run  with  a  bare  assignment  of  the  rent,  severed  from 
the  reversion,  and  give  the  assignee  a  general  right  of  recovery,  although 
judgment  was  given  against  him,  in  the  present  instance,  upon  another 
point.  This  decision,  which  his  honour  expressed  to  be  against  his  own 
understanding  of  the  general  doctrine  of  the  law,  was  supposed  by  him  to 
be  rendered  necessary,  by  the  authority  of  the-  cases  of  Ard  v.  Watkins, 
Croke  Eliz.  637.  651,  and  Allen  v.  Bryan,  5  B.  &  C.  512,  and  by  the 
previous  decision  of  the  Supreme  Court  of  New  York,  in  Demarest  v.  Wil- 
lard. It  would  seem,  however,  that  none  of  these  decisions  are,  in  the 
slightest  degree,  an  authority  for  the  proposition,  that  where  rent  is  incident 
to  a  reversion,  a  covenant  for  the  payment  of  the  rent  can  pass,  if  it  be 
severed  from  the  reversion,  and  assigned  apart.  Ard  v.  Watkins,  and  Allen 
v.  Bryan,  were  actions  of  debt,  and  were  decided  in  favour  of  the  assignee, 
as  to  the  first,  because  the  defendant  owing  the  rent,  and  being  liable  to  an 


126  smith's   leading   cases. 

action  of  debt  for  its  recovery,  had  assented,  by  attornment,  to  paying  it  to 
the  assignee  ;  and,  as  to  the  second,  because  the  statute  4  Anne,  c,  16,  s. 
9,  had  rendered  attornment  unnecessary.  An  assignment  of  the  reversion 
had  always,  in  the  case  of  leases  for  years,  carried  with  it  to  the  assignee, 
the  right  to  sue  in  debt,  and  by  these  decisions  it  was  merely  extended  to 
the  assignee  of  the  rent,  when  aided  by  an  attornment ;  but  the  right  to  sue 
in  covenant,  under  the  same  circumstances,  did  not  pass  at  common  law, 
even  to  the  assignee  of  both  rent  and  reversion  ;  and  it  is  needless  to  repeat, 
that  the  statute  32  Henry  8,  only  comes  in  aid  when  there  is  an  assignment 
of  a  reversion.  Demarest  v.  Willard,  far  from  deciding  that  the  assignee  of 
a  rent,  without  the  reversion,  can  sue  in  covenant  for  arrears  accruing, 
during  the  continuance  of  the  assignment,  merely  decides  that  the  assignor 
who  had  kept  the  reversion,  but  parted  with  the  rent,  could  not ;  not  because 
the  covenant  had  passed  to  the  assignee,  but  because  the  subject-matter  to 
which  it  related,  was  no  longer  in  the  assignor.  Of  course,  not  being  enti- 
tled to  the  money  due  on  the  rent,  he  could  sustain  no  damage,  and,  conse- 
quently could  acquire  no  right  of  action,  by  the  breach  of  the  covenant  for 
its  payment. 

It  may  be  observed,  that  the  right  of  a  mere  assignee  of  rent  reserved  on 
a  lease  for  years,  even  to  bring  an  action  of  debt,  was  in  the  earlier  English 
cases,  strongly  doubted  or  denied. 

In  order  practically  to  apply  the  doctrine  regulating  the  passage  of  cove- 
nant as  incident  to  the  assignment  of  estates,  it  is  necessary  to  examine 
what  right  of  action  on  a  covenant  running  with  land,  remains  to  a  cove- 
nantee, who  has  made  an  assignment  of  the  land  to  which  the  covenant  is 
attached. 

The  general  principle  is,  that  where  there  has  been  an  assignment 
before  breach,  the  assignee  alone  can  bring  suit,  unless  the  assignor  show 
at  least  a  continuing  possibility  of  injury  to  himself;  Bickford  v.  Page,  2 
Mass.  460.  This  rule  was  made  the  basis  of  the  decision  in  Kane  v. 
Sanger,  14  Johnson,  89.  In  that  case  different  parcels  of  the  land  to  which 
the  warranty  of  the  defendant  related,  had  been  assigned  by  the  plaintiff  to 
different  persons,  and  he  now  brought  suit  to  recover  for  a  subsequent 
eviction  of  the  assignees,  without  having  suffered  any  actual  loss  himself. 
The  court  took  the  distinction,  that  his  right  of  action  extended  only  so  far 
as  his  assignments  had  been  accompanied  with  a  warranty  over  ;  and  held, 
that  where  such  was  the  case,  as  he  might  be  compelled  to  make  good  the 
damages  arising  from  the  breach,  he  was  enabled  to  support  the  action. 
The  opinion  was  also  expressed,  that  the  assignees,  by  the  acceptance  of 
the  warranty  from  the  plaintiffs,  were  precluded  from  proceeding  on  that 
originally  given  by  the  defendant.  This  last  point  was  probably  so  held 
to  avoid  the  objection,  that  the  decision  would  expose  the  latter  to  two 
distinct  actions  for  the  same  breach.  But  in  the  subsequent  case  of  Withey  v. 
Mumford,  5  Cowen,  437,  the  court  overruled  the  latter  part  of  the  proposition, 
and  held  that  whether  there  was  or  was  not  a  second  warranty  in  the  deed 
of  assignment  of  land  by  the  grantee,  the  right  of  action  for  a  subsequent 
breach,  would  necessarily  vest  in  the  assignee  and  entitle  him  to  bring  suit. 
The  same  point  was  decided  by  the  Supreme  Court  of  Pennsylvania,  in  the^ 
case  of  Le  Ray  de  Chaumont  v.  Forsyth,  2  Penna.  514,  where  it  was  again 
determined  that  an  assignee  might  maintain  an  action  on  a  warranty  in  the 


spencer's  case,  127 

original  grant,  notwithstanding  the  introduction  of  another  to  himself  in  the 
deed  of  assignment.  But  in  giving  the  opinion  in  Withey  v.  Mumford,  the 
court  had  gone  further,  and  were  disposed  to  question  the  claim  of  a  party 
who  had  parted  with  all  his  interest  in  land,  even  by  a  conveyance  with 
warranty,  to  recover  damages  for  the  prospective  liability  to  the  grantee, 
to  which  a  breach  of  the  original  covenants  might  expose  him,  and  cited 
with  approbation  the  case  of  Booth  v.  Starr,  1  Conn.  244,  in  which  it  had 
been  determined  that  the  assignor  could  not  bring  suit  for  the  breach  of  the 
warranty  to  him,  until  he  had  actually  satisfied  the  demands  growing  out  of 
his  warrantj'^  over.  This  latter  case  was  affirmed  in  the  recent  decision  of 
Chase  v.  Weston,  12  New  Hampshire,  413,  where  the  assignor's  right  of 
suit  was  held  absolutely  dependent  on  his  having  been  compelled  to  make 
satisfaction  in  damages  to  the  assignee.  But  in  Keith  v.  Day,  1  Vermont, 
6(50.  671,  the  question  was  treated  as  still  open  on  this  point;  and  the 
court  contented  themselves  with  determining  that  the  assignor  could  not 
recover  where  the  assignment  contained  no  warranty  over,  as  under 
such  circumstances,  he  could  not  be  rendered  liable  for  the  subsequent 
eviction. 

The  principle  that  the  mere  existence  of  a  covenant  in  the  covenantee 
will  not  give  him  a  right  of  suit  where  he  has  assigned  the  interest  to  which 
it  relates,  and  thus  precluded  all  possibility  of  damages  from  any  subsequent 
breach,  was  recognised  in  the  case  of  Demarest  v.  Willard  (supra,  page  ). 
In  that  case,  the  lessor  of  an  estate  for  years,  having  assigned  the  rent, 
but  without  the  reversion,  brought,  after  a  reassignment  to  himself,  an  action 
of  covenant,  for  the  arrears  which  accrued  during  the  continuance  of  the 
assignment ;  and  the  court  held,  that  although  the  covenant  continued  in 
him,  and  no  right  of  action  passed  on  it  to  the  assignee  of  the  rent,  yet,  as 
he  had  no  interest  to  be  affected  at  the  time  of  the  breach,  he  could  not 
recover  notwithstanding  the  reassignment  to  him  of  all  the  assignee's  interest. 
In  this  instance  the  covenant  necessarily  remained  in  the  covenantor,  as  no 
estate  in  the  land  passed  with  which  it  could  run,  and  the  right  of  the  assignee 
to  have  brought  debt  for  the  rent,  was  necessarily  a  strong  argument  to  show 
that  no  suit  could  be  sustained  by  the  assignor.  But  where  the  breach  has 
occurred  before  assignment,  the  right  of  suit  on  the  covenants  of  warranty 
and  for  title,  has  been  treated  in  this  country  as  dependent  on  considerations 
entirely  unconnected  with  the  question  of  damages.  In  Townsend  v. 
Morris,  6  Cowen,  123,  it  was  determined  that  even  where  running  with 
land,  and  intended  for  the  benefit  of  the  inheritance,  they  were  covenants, 
personal,  sounding  in  damages,  on  which  the  executors  of  the  covenantor 
were  liable,  and  that  being  personal  remedies,  they  did  not  descend  as  to 
part  after  breach,  to  the  heir  of  one  of  two  joint  covenantees,  tenants  in 
common  under  the  deed  in  \vhich  the  warranty  was  contained,  but  survived 
to  the  other  covenantee  and  tenant  in  common,  by  whom  the  action  was 
well  brought,  for  the  whole  damages  sustained  by  an  eviction  from  the 
whole  of  the  land.  Beddoe's  Executor  v.  Wadsworth,  21  Wendell,  121, 
again  asserted,  that  such  a  covenant  though  before  breach,  annexed  to  the 
realty,  and  running  with  the  land  to  assignees,  and  descending  to  heirs, 
became,  on  breach,  a  mere  personal  right,  and,  as  such,  survived  to  the 
executor  of  the  assignee  who  was  evicted  in  his  lifetime,  and  did  not  descend 
to  his  heir.     These  decisions  are  fully  supported  by  those  in  most  of  the 


128  smith's    LEADING     CASES. 

Other  states  of  this  Union.  Clark  v.  Swift,  3  Metcalf,  390;  Thayer  v. 
Ciemencc,  22  Pick.  490;  Bartholomew  v.  Candee,  14  id.  1G7;  Bickford 
V.  Page,  2  Mass.  455  ;  Prcscott  v.  Truman,  4  id.  627  ;  Wyman  v.  Ballard, 
12  id.  304;  South's  Heirs  v.  Hoy's  Heirs,  3  Monroe,  88.  94;  Beddoe's 
'Executor  v.Wadsworth,  21  Wend.  120;  Townsend  v. Morris,  6  CowetJ, 
123;. Hamilton  v.  Wilson,  4  Johns.  72;  Bennett  v.  Irwin,  3  id.  363; 
,  Mitchell  ,v.  Warner,  5  Covven,  497  ;  Chapman  v.  Holmes,  5  Halsted,  20  ; 
Garrison  V.  Standford,  7  id.  261. 

From  these  case^  it  appears  that  the  general  current  of  American  autho- 
rity has  tended,  with  but  little  exception,  towards  the  position,  that  on  total 
breach,  a  covenant,  though  annexed  to  the  realty,  becomes  a  merely  personal 
right,  which  remains  with  the  covenantee  or  his  executors,  and  does  not 
descend  with  the  land  to  heirs,  nor  run  with  il  on  any  future  assignment  to 
third  parties.     Wheje  the  right  of  action  falls,  there  it  lies. 

Of  course,  under  this  doctrine,  where  the  nature  of' the  covenant  is  such 
as  in  the  instance  of  a  covenant  for  seisin  or  against  incumbrances,  that  it 
musj  be  broken  instantaneously,  if  at  all,  it  is  deprived  of  all  efiiciency  for 
the. protection  of  title  in  the  hands  of  an  assignee,  even  where  the  loss 
resulting  from  the  broach  has  fallen  solely  upon  him.  Thus  the  right  of 
action  on  covenants,  originally  intended  for  the  benefit  of  the  inheritance  in 
all  subsequent  hands,  has  been  denied,  by  this  course  of  decision,  to  the  pur- 
chaser of  the  land,  although  the  party  really  injured, — Chapman  v.  Holmes, 
Hamilton  v.  Watson,  Clark  v.  Smith,  Mitchell  v.  Warner, — and  held  to 
ren^ain  in  the  original  grantee,  who  had  perhaps  in  reality  not  been  a  losexi 
Bickford  v.  Page,  Garrison  v.  Sandford.  But  under  these  circumstances 
the  right  of  the  latter  to  recover  has  been  limited  to  nominal  damages,  unless 
where  he  can  rest  his  claim  to  indemnity  upon  having  extinguished  the 
paramount  title  or  incumbrance  weighing  upon  the  estate  in  the  hands  of 
the  assignee;  Prescott  v.  Truman,  4  Mass.  627,  Wyman  v.  Ballard,  12  Id. 
30.4 ;  when  it  will  be  increased  to  the  full  amount  of  the  sacrifice  actually 
incurred  for  that  purpose. 

At  common  law,  warrant}'  was.  exclusively  a  covenant  real.  The  right 
of  suit,  even  after  breach,  descended  to  the  heirs  ;  and  as  the  recovery  sought 
was  solely  of  lands,  the  remedy  was  in  all  cases  prosecuted  against  them, 
and  could  not  be  employed  by  or  against  the  personal  representatives  of  the 
parties. 

Thus  in  the  case  of  Pencombe  v.  Rudge,  as  reported  in  Yelverton,  129, 
it.  was  held,  that  where  a  feoffment  for  life  had  been  made,  expressed  in  the 
accompanying  deed  by  the  words  dedi  and  demisi,  no  action  of  covenant 
personal  could  have  been  maintained  to  recover  damages  for  an  eviction  of 
the  freehold,  although  as  the  feoffees  had  merely  been  dispossessed  by  a 
third  party  clahning  under  a  prior  lease  for  years  from  the  feoffor,  as  they 
still  remained  seised  of  the  reversion  in  the  premises,  they  were  entitled  to 
sue  on  the  covenant  for  quiet  enjoyment  implied  by  law  from  the  use  of 
the  verb  demisi.  This  case  was  subsequently  taken  on  error  to  the  Exche- 
quer Chamber,  where  the  judgment  of  the  King's  Bench  below  was  affir- 
med ;  Hobart,  3.  But  from  the  report  there  given,  it  appears  that  the  deed 
of  feoffment  contained  a  clause  of  ■express  warranty,  and  that  the  Exchequer 
Chamber  rested  their  judgment  on  the  ground  that  where  the  injury  was  of 
a  nature  for-  which  no  real  action  would  lie,  as  in  the  case  of  a  mere  dispos- 


spencer's  case.  129 

session  for  years  the  warranty  would  not  fail  altogether,  but  would  be  so  con- 
strued as  to  enure  for  the  support  of  an  action  of  covenant  personal.* 

In  Chapman  v.  Holmes,  already  cited,  breaches  of  three  distinct  cove- 
nants,— of  warranty,  against  incumbrances,  and  for  seisin, — were  assigned 
in  the  declaration,  and  while  the  defence  was  set  up  that  the  two  latter 
having  been  broken  before  assignment  had  never  passed  to  the  plain- 
tjfT,  it  was  also  insisted  that  the  action  which  was  of  course  personal  and 
sounded  in  damages,  could  not  be  sustained  on  the  former.  This  position 
was  fully  supported  by  authorities  cited  from  the  old  books  of  the  law, 
and  it  was  asserted  in  the  course  of  the  argument,  that  no  English  pre- 
cedent could  be  found  in  which  these  had  been  disregarded  and  a  warranty 
treated  on  any  other  than;  the  common  law  footing,  or  been  made  the  foun- 
dation of  any  other  proceeding  than  a  voucher  or  warrantia  charta.  It  was 
however  held  by  the  court,  that  in  American,  if  not  in  English  law,  this  part 
of  the  old  system  of  common  assurances,  although  once  so  important  and 
pecuUarin  its  legal  relations,  had  become  a  mere  covenant  personal,  and  that 
the  right  of  suit  and  recovery  upon  it  was  to  be  regulated  by  the  ordinary 
rule  governing  actions  upon  contracts  under  seal.  The  point  thus  expressly 
determined,  was  tacitly  assumed  as  the  basis  of  the  decision  in  most  of  the 
cases  just  cited,  in  which  the  nature  and  operation  of  a  warranty  were  pre- 
sented to  the  counts  for  consideration. 

The  ground  taken  in  argument  in  Chapman  v.  Holmes,  with  regard  to 
the  effect  given  in  England  to  a  warranty,  is  fully  supported  by  the  autho- 
rities if  confined  to  those  instances  in  which  the  warranty  is  attached  to  an 
estate  not  less  than  for  life,  and  the  injury  complained  of  is  one  affecting 
the  freehold.  But  when  attached  to  a  mere  chattel  interest  such  as  a  term 
for  years,  there  is  no  room  for  the  operation  of  a  warranty  as  a  covenant 
real,  and  it  has  been  made  a  question  not  so  much  whether  it  should  be 
allowed  to  fail  altogether,  as  what  effect  should  be  given  it.  In  the  recent 
case  of  Williams  v.  Burrell,  1  C.  B.  401,  this  point  was  presented  under 
the  following  circumstances.  A  tenant  for  life  intending  to  exercise  a 
leasing  power,  granted  a  lease  for  ninety-nine  years,  by  an  indenture  con- 
taining a  clause,  that  the  lessor  for  himself  his  heirs  and  assigns  would,  dur- 
ing the  said  term,  warrant  and  defend  the  premises  demised  against  all  per- 
sons lawfully  claiming  the  same.  The  appointment  proved  to  be  void,  the 
assignee  of  the  lessee  was  evicted  by  the  remainder-man,  and  his  executor 
having  brought  an  action  of  covenant  on  the  clause  of  warranty,  the  objec- 
tion was  taken  that  at  the  most  it  was  onlj-  a  covenant  in  law,  and  therefore 
could  not  continue  in  existence  longer  than  the  estate  to  which,  it  was 
.Utached,  nor  enure  to  charge  the  executor  tor  a  breach  accruing  after  the 
death  of  the  testator. 

.  But  it  was  held  by  Tindal,  C.  J.,  that  as  the  clause  in  dispute  did  not 
come  within  the  strict  legal  construction  which  would  have  applied  to  its 
words  as  being  terms  of  art,  had  the  estate  granted  been  one  of  freehold 
instead  of  a  mere  chattel  interest,  the  only  question  was  as  to  the  meaning 
of  the  words  as  understood  by  the  parties,  and  that  these  in  their  ordinary  and 
natural  sense  amounted  to  an  express  covenant  for  the  quiet  enjoyment  of 
the  lessee  during  the  continuance  of  the  lease,  on  which  his  assignee  might 

*  See  the  learned  note  of  Mr.  Justice  Williams,  on  this  case,  in  his  edition  of  Hobart. 
Vol.  I.— 9 


130  smith's  leading  cases. 

bring  suit,  and  the  executor  of  the  lessor  be  made  liable.  But  he  also  held, 
that  as  the  only  question  in  any  instrument  is  as  to  its  meaning,  such  mean- 
ing whether  appearing  expressly  or  collected  by  implication,  would  in  an 
agreement  under  seal  have  the  force  of  an  express  covenant,  and  bind  not 
only  the  parties  themselves,  but  their  personal  representatives,  and  that  the 
defendants  would  therefore  be  liable  even  if  the  direct  purport  of  the  clause 
were  a  warranty,  and  the  effect  of  a  covenant  could  only  be  given  to  it  by 
implication.  Covenants  implied  by  law  in  the  sense  contended  for  by  the 
counsel  for  the  defence,  as  standing  in  opposition  to  those  arising  out  of  the 
agreement  of  the  parties,  were  said  to  be  those  only  which  the  law  calls 
into  being  in  certain  instances  as  incidents  to  the  creation  of  estates,  and 
which  therefore  cannot  continue  in  existence  longer  than  the  estates  to 
which  they  are  accessaries.  The  distinction  taken  throughout  the  whole  of 
this  case,  fully  proves  that  a  warranty  still  remains  on  its  common  law 
footing  in  England,  wherever  the  circumstances  are  such  as  to  admit  of 
its  technical  operation. 

But  the  right  of  the  heir  to  sue  for  indemnity  even  where  the  descent 
occured  after  a  breach  b}''  eviction,  was  not  confined  at  law  to  the  case  of  a 
warranlia  charta  or  voucher  to  warranty,  but  also  extended  to  that  of  all 
other  covenants  real;  Fitzherbert,  N.  B.  145.  Viner's  Abridg.  Cove- 
nant, H.  The  tenant  of  land  who  neglected  to  keep  such  a  covenant  for 
their  conveyance  was  treated  as  a  deforciant ;  Blackstone,  vol.  3d.  174;  and 
as  the  remedy  sought  by  the  writ  was  in  the  nature  of  that  now  obtained  by 
a  bill  for  specific  performance,  and  consisted  in  a  recovery  of  the  land  itself, 
it  vested  in  the  heir  as  the  party  really  injured  by  the  breach,  and  not  in 
the  executor.  In  this  form  the  action  of  covenant  has  gone  out  of  use,  its 
demand  is  now  in  all  cases  merely  for  damages,  and  unless  where  attached 
to  an  estate  in  land,  it  cannot  in  general  avail  to  give  a  right  of  action  to  any 
other  than  the  original  covenantee  or  his  personal  representatives.  Yet  in 
the  case  of  Wotton  v.  Cooke,  Dyer,  337,  b,  where  several  persons  had  pur- 
chased land  in  joint  tenanc}^  and  entered  into  mutual  covenants  for  their 
equal  division  among  the  heirs  of  all,  by  the  survivor,  it  was  held  that  a 
suit  might  be  maintained  against  the  latter,  by  the  heir  of  a  party  de- 
ceased, to  recover  damages  for  a  breach,  although  it  was  obvious  that  he 
inherited  no  estate  in  the  land,  and  that  the  covenant  must  have  descended 
to  him,  if  at  all,  bj''  its  own  operation. 

"The  intent  of  the  earlier  law  in  giving  the  writ  of  covenant  real  to  the 
heir,  had  obviously  been  so  to  apportion  the  remedy  as  to  afford  relief  to  the 
party  really  injured ;  and  this  decision  extended  the  principle  to  an  analogous 
instance  in  which  the  wrong  was  of  the  same  nature,  although  the  action 
was  merely  personal.  This  analogy  can  hardly  be  said  to  have  been  disre- 
garded in  Lucy  v.  Levington,  2  Levinz,  26,  although  it  was  there  deter- 
mined, that  the  right  of  action  for  the  breach  of  a  covenant  for  quiet  enjoy- 
ment, by  the  eviction  of  the  covenantee  in  his  lifetime,  belonged  to  the  exe- 
cutor and  not  the  heir,  as  the  whole  injury  had  occurred  before  the  descent 
to  the  latter.  But  in  Lewes  v.  Ridge,  Croke  Elizabeth,  599,  a  different 
rule  had  prevailed,  and  the  assignee  of  a  reversion,  was  not  permitted  to  take 
advantage  of  a  covenant  for  the  discharge  of  incumbrances  which  had 
been  broken  before  the  assignment,  although  the  actual  injury  did  not  take 
place  till  afterwards.     These  two  decisions  of  Lewes  v.  Ridge,  and  Lucy  v. 


spencer's   case.  131 

Levington,  have  been  viewed  in  general  in  this  country  as  ruhng  the  law, 
that  a  breach  interrupts  the  capacity  of  a  covenant  to  rnn  with  land,  and 
have. in  fact  led  the  long  train  of  American  cases  above  cited.  But  in  Eng- 
land the  law  has  finally  settled  down  upon  the  more  reasonable  proposition, 
that  the  right  of  suit  under  a  covenant  running  with  land  is  to  be  determined 
not  by  reference  to  the  relative  periods  of  the  breach  and  the  assignment, 
but  by  examining  who  has  been  the  party  really  injured.  Thus  where  a 
covenant  of  seisin  was  broken  as  soon  as  made,  by  the  want  of  estate  in  the 
vendor,  but  the  vendee  sustains  no  actual  damage  during  his  life,  the  right 
of  action  was  held  not  to  survive,  as  would  a  personal  right,  to  the  executor, 
but  to  descend  to  the  heir;  and  it  would  seem,  that  the  court  were  of  opinion, 
that  even  had  the  vendee  himself  been  evicted,  the  heir  would  still  have 
had  a  right  of  suit  for  the  value  of  the  land,  although  the  executor  might  by 
a  special  declaration,  have  recovered  for  the  amount  in  which  the  personal 
estate  had  been  diminished,  by  the  failure  of  the  rents  and  profits  during  the 
lifetime  of  the  testator.  Kingdon  v.  Nottle,  1  Maule  &  Selwyn,  355,  4 
Id.  53.  And  in  like  manner  it  was  decided,  in  the  case  of  King  v.  Jones, 
5  Taunton,  4)8,  that  an  action  might  be  sustained  by  an  heir  on  a  covenant 
for  further  assurance,  broken  in  the  lifetime  of  his  ancestor,  when  the  injury 
occasioned  by  the  breach  occurred  after  the  death  of  the  latter. 

The  distinction  taken  upon  these  decisions  in  the  case  of  Raymond  v.  Fitch 
cited  by  the  English  editor,  (supra  page  100),  has  recently  been  affirmed 
by  the  Court  of  Exchequer  in  the  case  of  Ricketts  v.  Weaver,  12  M.  & 
W.  717.  As  there  explained  by  the  court,  it  appears,  that  the  right  of  suit 
of  the  heir  is  confined  to  breaches  afl^ecting  the  substance  of  the  inheritance, 
as  it  has  descended  to  him,  on  which  the  executor  could  not  sue  at  all,  or 
not  without  averments  of  special  damage  in  the  declaration  ;  and  that  the 
latter  may  bring  suit  in  all  cases  in  which,  as  in  the  instance  of  the  breach  of 
a  covenant  to  repair,  the  testator  could  have  recovered  in  his  lifetime,  to  the 
full  extent  of  the  injury.  This  is  in  fact  a  mere  application  of  the  principle 
that  the  right  of  suit,  as  between  the  heirs  and  the  personal  representatives 
of  a  party  deceased,  depends  upon  the  period  not  of  the  nominal  breach, 
but  of  the  actual  injury. 

Although  there  does  not  appear  to  be  any  state  in  the  union  in  which  the 
cases  of  Kingdon  v.  Nottle,  and  King  v.  Jones,  have  been  followed,  there 
are  several  in  which  no  opposite  decision  has  yet  been  made,  and  in  which 
the  question  may  be  considered  as  still  open  between  their  authority  and  that 
of  the  American  cases  above  cited.  In  Watson  v.  Blaine,  12  S.  &  R.,  131, 
it  was  indeed  determined,  that  on  a  covenant  with  the  ancestor  unconnected 
with  any  estate  coming  by  descent  to  the  heir,  no  action  personal  could  h& 
sustained  by  the  latter,  even  where  the  covenant  was  for  the  conveyance  of 
land;  and  such,  notwithstanding  the  decision  in  Watson  v.  Cook,  would 
seem  to  be  the  better  view  of  the  law.  But  in  the  cases  of  Kisselman's 
Lessee  v.  Old,  4  Dallas,  168,  Eshel man's  Lessee  v.  Hoke,  2  Yeates,  509, 
and  Jourdan  v.  Jourdan,  9  S.  &  R.  209,  a  warranty  of  lands  was  treated  on 
its  ancient  common  law  footing,  not  indeed  as  to  the  form  of  the  remedy,  but 
as  to  the  parties  entitled  to  and  liable  under  it;  and  it  was  held  that  even 
when  collateral,  and  of  course  unaccompanied  with  any  estate  by  inheritance, 
it  descended  to  the  heir,  and  debarred  him  from  recovering  the  premises  as 
to  which  it  had  been  given.     It  may  be  observed,  that  in  this  respect  thero 


\ 


132  smith's     LEADING     CASES. 

is  some  inconsistency  between  the  class  of  decisions  in  New  York  and  the 
eastern  states  just  referred  to,  and  those  in  the  same  sections  of  country,  by 
which  it  has  been  held  that  a  warranty  given  by  a  party  who  has  no  estate 
in  land,  will  not  merely  serve  to  rebut  the  warrantor  and  his  heirs  from 
asserting  an  adverse  title  subsequently  acquired  by  them,  but  will  operate  to 
bind  and  actually  pass  such  title  by  way  of  estoppel,  and  thus  vest  in  the 
grantee  and  his  heirs  or  assigns  an  actual  estate,  taking  effect  through  the  origi- 
nal grant,  which  may  be  set  up  as  against  all  the  world.  Jackson  v.  Wright, 
]4  Johns.  193,  Jackson  v.  Hubble,  1  Cowen,  616,  Jackson  v.  Bradford,  4 
Wendell,  622,  Baxter  v.  Bradbury,  20  Maine,  263,  Black  v.  Tucker,  12  Vt. 
Rep.  39.  44,  Middlebury  College  v.  Cheney,  1  Id.  336,  Hoyt  v.  Dimon,  5 
Day,  479.  In  this  respect,  the  effect  of  the  warranty  has  not  been  sup- 
posed to  be  limited  by  an  eviction,  and  there  is  an  obvious  difficulty  if  it  be 
a  mere  personal  covenant  vesting  on  breach  in  executors,  in  supposing  that 
its  burden  can  descend  to  bind  an  estate  subsequently  acquired  by  the  heir 
of  the  warrantor,  and  its  benefit  enure  to  pass  such  an  estate  to  an  assignee 
from  the  warrantee. 

Nor  does  it  appear  more  consistent  to  hold  as  in  Bickford  v.  Page,  that 
the  right  of  a  covenantee  who  has  conveyed  his  estate  before  breach,  or  of  a 
lessor  who  has  assigned  the  rent  without  the  reversion,  as  in  Demarest  v. 
Willard,  to  sue  on  a  covenant  for  the  payment  of  the  one  or  the  protection 
of  the  other,  is  dependent  on  whether  he  has  still  an  interest  in  the  subject 
to  which  it  relates,  and  yet  to  hold  that  his  right  of  suit  still  survives  on  a 
covenant  for  seisin,  because  there  has  been  a  nominal  breach  before  assign- 
ment, although  the  injury  produced  by  a  subsequent  eviction  has  fallen 
wholly  on  the  assignee. 

On  this  latter  point  a  distinction  was  taken  in  the  case  of  Backus's  Admin- 
istrators V.  M'Coy,  3  Hammond,  211,  where,  with  the  view  of  avoiding  the 
difficulty  attendant  upon  the  ordinary  rule,  it  vvas  held  that  no  breach  Could 
lake  place  on  the  covenant  of  seisin  where  possession  originally  accom- 
panied the  deed  until  the  actual  eviction  of  the  grantee.  An  approval  appears 
to  have  been  intended  of  Kingdon  v.  Nottle,  and  King  v.  Jones,  but  with 
this  theoretical  exception,  of  which  the  pleadings  did  not  permit  the  reduc- 
tion to  practice,  the  court  followed  in  their  decision  the  cases  in  New  York 
and  Massachussetts. 

In  Suydam  v.  Jones,  10  Wendell,  180,  an  interesting  decision  was  made, 
giving  the  character  of  negotiabihty,  to  the  transfer  of  covenants  running 
with  land,  and  deciding,  that  in  the  hands  of  an  assignee  of  the  land,  they 
would  not  be  liable  to  equities,  created  between  the  grantor  and  grantee  of 
such  land,  at  the  time  the  covenant  Vv^as  made  by  the  grantor.  Covenants, 
in  general,  of  course,  cannot  be  transferred  by  the  mere  act  of  the  parties,  so 
as  to  give  the  assignee  a  right  to  sue  at  common  law,  in  his  own  name ;  and 
in  Pennsylvania,  where  such  a  right  of  suit  has  been  given  to  the  assignee 
of  specialties  for  the  payment  of  money,  the  latter,  in  availing  himself  of  it, 
is  liable  to  all  equities  between  his  assignor  and  the  party  originally  cove- 
nanting, even  although  they  may  have  arisen  after  assignment,  if  before 
notice.  From  the  New  York  decision,  however,  it  would  appear,  that  where 
the  covenant  runs  with  an  assignment  of  land,  and  passes  by  implication  of 
lav/,  no  equity  between  the  original  covenantee  and  covenantor,  will  avail 
•he  latter  as  a  defence  to  an  action  brought  by  the  assignee,  unless,  perhaps, 


spencer's  case.  133 

when  there  is  an  actual  notice  of  the  equity  at  the  time  of  the  assignment 
and  passage  of  the  covenant. 

This  decision  appears  to  give  covenants  of  this,  sort  the  force  of  obliga- 
tions under  seal,  and  the  capacity  for  negotiation  of  promissory  notes.  Even  a 
formal  technical  release  of  the  covenant  by  the  covenantee  after  assignment, 
vi'ill  not,  it  was  said  on  the  authority  of  Middlemore  v.  Goodale,  supra,  90, 
destroy  the  covenant. 

In  Norman  v.  Wells,  17  Wendell,  136,  the  question  as  to  what  species 
of  covenants  are  capable  of  running  with  land,  was  full}'-  considered  by  the 
Supreme  Court  of  New  York.  The  defendant  had  covenanted  that  he  would 
not  erect  any  mill  for  sawing  mahogany,  on  a  stream  running  through  part 
of  his  land,  in  the  deed  by  which  he  granted,  as  a  mill  seat,  another  portion 
of  land  for  a  term  of  years  to  the  lessee,  from  whom  the  plaintiff  had  taken 
by  assignment.  The  court  decided  that  although  the  covenant  was  to  do 
something  off  the  land,  yet  as  it  affected  the  value  of  the  land  demised  in 
the  deed  containing  the  covenant,  it  was  not  so  far  collateral  to  such  land  as 
not  to  run  with  it. 

The  English  case  of  Vyvyan  v.  Arthur,  1  Barn.  &  Cres.  410,  is  the  con- 
verse of  Norman  v.  Wells,  and  therefore  calculated  to  support  the  principle 
there  laid  down.  A  covenant  to  grind  at  the  mill  of  the  lessor  all  the  grain 
grown  on  the  demised  premises,  was  held  to  be  in  the  nature  of-rent,  and 
beneficial  to  the  reversion,  so  long  as  the  owner  of  the  reversion  continued 
to  own  the  mill.  It  was  therefore  held  that  the  assignee  of  both  might  main- 
tain an  action  on  the  covenant,  although  to  be  performed  off  the  land. 

It  may  be  observed,  that  the  covenant  in  Norman  v.  Wells  contained  the 
word  assigns,  and  that  in  the  preceding  case  of  Thompson  v.  Rose,  8  Cowen, 
266,  the  first  resolution  in  Spencer's  case  was  strictly, applied  by  the  court, 
and  the  word  assigns  not  being  in  a  covenant  entered  into  by  a  lessor  to  pay 
the  lessee  for  buildings  to  be  by  him  erected  on  the  land,  the  benefit  of  such 
covenant  was  adjudged  not  to  pass  to  the  assignee  from  the  lessee. 

At  the  same  time,  however,  that  the  court  held  in  this  case,  that  the  cove- 
nant did  not  run  with  the  land  to  the  assignee,  so  as  to  give  him  an  action 
in  his  own  name,  they  determined  that  an  equitable  interest  in  the  covenant 
did  pass  ;  and  consequently  that  after  notice  of  assignment  of  the  term,  a 
release  given  by  the  original  lessee  to  the  lessor,  would  not  prevent  a  reco- 
very against  him  in  an  action,  brought  by  such  lessee  in  his  own  name,  but 
for  the  benefit  of  the  assignee. 

The  distinction  made  by  the  common  law  between  the  effect  of  assign- 
ment, on  the  express  and  implied  covenants  of  the  lessee,  will  be  found 
recognised  in  the  case  of  Kimpton  v.  Walker,  9  Vermont  Reports,  191, 
where  the  Supreme  Court  held  that  the  words  yielding  and  paying  in  the 
reddendum,  were  only  an  implied  covenant  to  pay  the  rent  on  the  part  of 
the  lessee,  and,  as  such,  were  discharged  by  the  assignment  and  acceptance 
of  the  assignee  as  tenant  ;  although,  had  there  been  an  express  covenant  to 
pay,  the  liability  under  it  would  have  continued,  notwithstanding  the  assign- 
ment. 

On  the  other  hand,  the  lessee's  liability  on  an  express  covenant,  ev^en 
after  assignment  and  acceptance  of  the  rent  by  the  lessor  from  the  assignee, 
will  be  found  adjudged  by  the  Supreme  Court  of  Pennsylvania,  in  Dewey 
V.  Dupuy,  2  Watts  &  Sergeant,  556. 


134  smith's   leading   cases. 

It  has  long  been  a  disputed  question  whether  an  assignment  over  divested 
the  liability  of  an  assignee  under  covenants  running  with  land,  for  breaches 
committed  during  his  possession  ;  but  it  may  now  be  considered  as  settled 
by  the  decision  of  the  English  Court  of  Exchequer,  in  the  recent  case  of 
Harley  v.  King,  2  Crompton,  Meeson  &  Roscoe's  Reports,  22.  It  was  there 
held  that  the  right  of  action  having  once  vested  in  the  lessor  of  a  term  for 
breaches  committed  by  the  assignee,  could  not  be  divested  by  the  re-assign- 
ment of  the  latter,  although  the  privy  of  estate  was  destroyed  between  them, 
and  the  privity  of  contract  had  never  existed. 

The  case  of  Norman  v.  Wells  may  be  regarded  as  carrying  the  power  of 
covenants  to  run  with  land  to  the  extremest  limits  allowed  by  law.  Care, 
however,  must  be  taken  on  the  one  hand  not  to  suppose  that  a  court  of 
equity  will  not  sometimes  go  further,  and,  on  the  other,  not  to  draw  decrees 
on  bills  of  equity  into  precedents  for  actions  at  law.  Thus  in  Van  Horn  v. 
Grain,  1  Page,  455,  certain  of  the  tenants  in  common  of  a  tract  of  land,  had 
leased  the  whole  for  life  ;  with  a  covenant  to  convey  the  reversion,  and  also  a 
certain  other  tract,  on  the  payment  of  a  fixed  sum.  They  afterwards  became 
possessed  of  the  entirety,  and  of  the  other  tract,  which  they  had  not  at  the 
lime  of  lease  made,  and  in  a  suit  by  an  assignee  of  part  of  the  lease  against 
the  assignee  from  them  of  the  other  tract  and  the  reversion,  chancery  decreed 
a  specific  performance.  Now  most  certainly  the  covenant  to  convey  the  other 
tract,  was  not  one  which  could  have  run  with  the  land  to  the  assignee  of 
the  lessee,  and  still  less  could  its  burden  have  passed  to  the  assignee  of  the 
reversion.  But,  at  the  same  time,  there  can  be  no  doubt  on  the  acquisition 
of  the  second  tract  by  the  covenantors,  their  previous  covenant  to  convey  it 
created  an  equitable  estate  in  the  covenantee,  by  analogy  to  the  direct  legal 
estate  which  would  have  arisen  by  estoppel  under  a  previous  absolute  con- 
veyaiKe.  This  equitable  estate,  which  passed  by  the  assignment  to  the 
plaintiff,  the  decree  was,  of  course,  bound  to  support. 

It  must  have  been  on  the  same  principle  that  chancery  in  England  has 
decreed  the  assignee  in  fee  of  land  to  fulfil  the  covenants  made  by  his  assig- 
nor, to  keep  open  and  repair  a  water-course,  granted  by  the  latter  out  of  the 
land  ;  Holmes  v.  Buckly,  Equity  Cases  Abridged,  26.  No  liability  would 
exist  at  common  law,  since  the  burden  of  covenants,  independently  of 
tenure  and  the  consequent  privity  of  estate,  can  never  run  with  land  ;  and 
it  may  be  doubted  whether  the  case  would  now  be  received  as  law  on  either 
side  of  Westminster  Hall. 

At  law,  when  a  covenant  is  capable  of  running  with  land,  its  burden  will, 
of  course,  pass  to  the  assignee  of  the  legal  estate,  although  merely  a  trustee, 
but  equity  in  this,  as  in  other  cases,  considers  him  as  discharged,  and  holds 
the  cestui  que  trust  as  the  party  really  answerable.  On  this  principle,  the 
courts  of  Pennsylvania,  which  always  enforce  equitable  rights  and  liabilities, 
even  where  a  common  law  remedy  is  resorted  to,  have  held  that  a  party 
taking  under  a  conveyance  of  land  in  fee  an  equitable  title,  is  liable,  as 
assignee,  to  an  action  of  covenant,  although  the  legal  title  has  passed  under 
the  conveyance  to  a  third  person.  This  doctrine  was  applied  in  the  case  of 
Berry  v.  M'Mullen,  17  Sergeant  &  Rawle,  84,  although  the  party  charged 
as  assignee  was  a  stranger  to  the  deed  of  assignment  as  far  as  was  shown 
by  its  face,  and  his  equitable  interest  was  merely  a  question  of  fact  for  the 
jury. 


spencer's  case.  ^^^ 


*  With  regard  to  the  extent,  to  which  the  words  of  conveyance  employed 
in  deeds  passing  real  estate,  imply  a  covenant  of  --nty,  n  may  be^b^rv- 
ed  that  in  the  cases  of  Frost  v.  Raymond,  2  Games,  188  ,  Kent  v.  W  elsn  7 
Johns  259  Lessee  of  Gratz  v.  Ewalt.  2  Binney,  95,  and  Crouch  v.  Fowle, 
0  New  Har^psh  e,  219,  the  American  courts  have  recognised  as  st,ll  sub- 
l^Z  SeoTd  E  glish  law  declared  by  the  statute  de  b.gam.s,  that  the 
si.ting,  tne  oia  ^^^^^^^^        ^^^  conveyance,  im- 

^h:    f  :::Lu  l^^h  c^.  be  taicen  advantage  of  against  the  do,.r  du^^ing 
his  hfe,  but  does  not  impose  any  burden  on  h-  he.rs      2  ^^^^^^^; 

The«e  decisions  appear  also  to  have  determined,  that  whtn  a  tenuie  is 
crea  ed:  and  an  estate  not  less  than  freehold  passed  the  warranty  is  perp  - 
tual  or  bounded  only  by  the  natural  duration  of  the  esa^  graced.  This 
wa  'also  in  conformity  with  the  statute  de  bigamis,  which  u>  affirmance  of 
The  comin  la"v,  decLed  that  in  a  deed  creating  a  tenure,  ^^  give"  should 
'•  imnlv  a  continuing  warranty.      Statute  de  bigamis,  cap.  b. 

BeforeX  statute  of  auia  Emptores,  a  tenure  always  existed  between 
the  feoffor  in  fee  and  the  feoffee,  unless  there  was  some  provision  to  the 
contmry    n  the  deed,  2  Inst.  275,  and  therefore  both  the  feoffor  and  his^ieirs 
were  bound  to  warranty,  when  the  feoffment  was  made  by  the  word  "  ded 
2  In't   275.     It  would  seem  that  at  the  present  day  in  Pennsylvania  in  the 
absen  e  of  that  statute,  such  should  be  its  effect  in  all  transfers  by  deed,  of 
estate    0?  freehold  or  inheritance  ;  and  such  would  undoubtedly  seem  to  be 
the  effect  both  in  England  and  the  United  States,  if  rent  be  reserved  on  the 
nveyance  of  a  freehold  not  amounting  to  a  fee,  so  as  to  make  the  tenure 
•    of  the'donee  on  the  donor  indisputable ;  for  even  to  a  devise  for  hfe  or  m 
tail  renderino-  rent,  a  warranty  is  annexed.     Coke  l^it.  d»D,  a. 

The  que  tion  is  however  of  little  practical  importance  so  far  as  the  import 
of  the  wrd  give  is  concerned,  since  that  word  is  seldom  used  in  modern 
deeds  Id  the  cases  above  quoted  from  the  New  York  and  Pennsy  vania 
Repoi'ts,  together  with  many  others  which  might  be  referred  to,  all  decide 
Sir  ndependently  of  recent'  statutory  enactments  which  exist  in  several  of 
the  <=  ates  the  word  grant,  bargain,  and  sell,  commonly  resorted  to  m  convey- 
tit  tli-rcrntry!  -ply  -  warranty  or  covenant  for  ^^e  ^tl^  w^^-- 
It  may  however  be  observed,  that  if  the  law  as  declared  by  Coke  be  un- 
doubted; and  a  devise  in  tail  rendering  rent  has  an  implied  warranty  attach- 
edto  it    n  England,  then  a  conveyance  in  fee  in  Pennsylvania  reserving  a 
ground-rent  to%he  grantor  should,  under  the  law  as  laid  down  in  Ingersoli  v 
ler'eant,  create  an^mpUed  general  warranty,  whether  the  word  give  be  or 
be  not  ei;ployed  in  the  conveyance.     In  both  cases  there  would  exist  be- 
tween  grantor  and  grantee  a  tenure,  having  attached  to  it  a  rent  service  and 
the  common  law  consequence  of  a  perpetual  warranty  would  seem  to  foUovv 
In  takincT  leave  of  the  subject,  it  may  be  found  advantageous  briefly  to 
enumerate'the  various  rules  of  law  which  regulate  the  capacity  of  covenants 

'°  ThVIenetltgal  principle,  which  lies  at  the  foundation  of  the  whole 
doctrine'we  have  been  examining,  is,  that  choses  in  action  are  not  assignable 
A  covenant  finder  seal  is  of  course  as  much  within  the  operation  of  this 
principle  as  any  other  species  of  contract.  .     a     »     .-f<.rnf 

^  As  an  exception  to  this  principle,  the  common  law  permits  the  transfer  of 
covenants,  not  by  the  direct  operation  of  an  assignment,  but  as  incident  to 


136  smith's    LEADING    CASES.  , 

land  when  passed  by  assignment ;  provided  they  are,  in  theirnature,  capable 
of  running. with  land. 

-This  capacity  for  running  with  land  only  exists  when  the  covenant  is 
about  or  affecting  the  land.  But  it  may  be  held  to  be  a  covenant  affecting 
the  land,  iUthough  not  directly  to  be  performed  upon  it,  provided  it  tend  to 
increase  or  diminish  its  value  in  the  hands  of  the  holder. 

But  although  the  covenant,  agreeably  to  the  last  rule,  be  one  capable,  of 
running  with  land,  yet  independently  of  tenure  and  consequent  privity  of 
estate,  or  at  all  events,  of  such  a  relation  between  the  parties  as  would, 
agreeably  to  the  feudal  law,  have  created  tenure  and  p  rivity  of  estate,  it 
shall  only  run  with  the  land  when  and  as  for  the  benefit  of  the  land. 
For  the  purpose  of  imposing  a  charge  or  burden  upon  the  laoid,  it  shall? 
never  run. 

It  follows  that  covenants  made  about  or  relating  to  an  estate  which  does 
not  pass  at  the  time  of  covenant  made  by  some  conveyance  between  the 
parties,  although  capable  in  their  nature  of  running  with  land,  shall  never 
enure  as  covenants  to  impose  any  burden,  charge  or  obligation  on  a  third 
person  taking  such  estate  by  a  subsequent  assignment. 

Moreover,  even  when  the  land  is  conveyed  in  fee  at  the  time  of  making 
the-  covenant,  it  will  not,  where  the  principles  of  the  Statute  of  Q,uia 
Emptores  are  in  force,  rati  with  the  land  on  a  subsequent  conveyance,  as 
to  its  charge  or  burden.  Und'er  tliat  statute  a  conveyance  in  fee  creates- no 
tenure  or  privity  of  estate,  and  consequently  only  the  benefit  of  the  covenants 
can  be  attached  to  the  estate. 

Where  this  statute  or  the  doctrines  arising  under  it  are  not  in  force,  as  in 
Pennsylvania,  conveyances  in  fee  create  a  privity  of  estate  and  all  covenants 
capable  of  running  with  land,  therefore  pass  both  as  to  their  benefit  and 
and  burden,  to  every  subsequent  assignee  of  the  land  conveyed. 

As -the  statute  in  question  only  applies  to  conveyances  of  the  whole- fee, 
the  common  law  doctrine  still  applies  to  all  conveyances  of  smaller  estates, 
and  consequently  the  benefit  and  burden  of  covenants  will  every  where  pass 
to  all  subsequent  assignees  of  such  estates. 

As  a  covenant  is  not  by  itsetf  capable  of  assignment  at  common  law,  and 
only  passes  as  an  incident  to  the  land  conveyed  by  an  assignment,  it  follows 
that  where  the  assignor  has  no  estate  in  the  lands  to  which  the  covenants 
relate  at  the  time  of  the  assignment,  no  right  of  action  on  them  will  pass  to 
the  assignee.  This  doctrine  of  course  applies  to  covenants  for  title  and 
warranties.  But  on  all  covenants  thus  affecting  the  realty,  the  heir,  if 
injured  by  the  breach,  has,  agreeably  to  the  English  law,  a  right  to  sue, 
although  his  ancestor  had  nothing  in  the  land. 

The  estate  in  land  requisite  at  common  law  to  carry  with  it  an  express 
covenant,  was  an  estate  in  actual  possession.  Hence  such  covenants  could  not 
run  to  the  assignees  of  reversions.  By  force  of  the  statute  32  Henry  8,  the 
privity  of  contract  in  such  covenants  has  been  transferred  to  the  assignees 
of  reversions  after  estates  for  life  or  years,  provided  the  covenant  be  in  i's 
nature  capable  ef  running  with  land  at  common  law.  Reversions  after 
conveyances  in  fee  did  not  exist  in  England  at  the  time  of  the  statute  ;  and 
reversions  after  estates  tail  are  not  within  the  limits  of  its  operation.  It 
follows  that  the  assignees  of  parties  who  have  made  conveyances  in  fee  or 


SPENCER     g    CASE.  137 

in  tail,  remain  as  at  common  law,  and  have  neither  the  benefit  nor  the  burden 
of  the  covenants  made  with  their  assignors. 

It  has  been  observed,  that  at  common  law,  the  burden  of  covenants  never 
ran  with  land,  save  where  there  was  a  privity  of  estate  between  th©  cove- 
nantee and  the  covenantor  ;  or,  in  other  words,  where  there  was  a  convey- 
ance from  one  to  the  other,  while  their  benefit  mighr  in  all  cases  run  without 
such  privity  or  conveyance.     Although  this  distinction  may  at  first  sight 
appear  arbitrary,  yet  on  a  closer  examination,  it  will  be  found  to  be  the  ' 
best  of  which  the  subject  admits.     When  a  party  wh&ias  ho  estate  in  the 
premises,  enters  into  a  covenant,  having  for  its  object  -the  benefit  of  land  in 
the  hands  of  another,  as  he  has  assumed  the  obligation,  it  must  to  him  be  a 
matter  of  indifi^erence  to  whom  he  is  obliged  to  fulfil  it.     He  cannot,  there- 
fore complain  that  the  benefit  of  the  covenant  should  pass  to  a  subsequent 
assignee  of  the  land,  and  carry  with  it  a  consequent  right  of  suit.     The 
right  of  action  is  in  that  case  transferred,  and  not  the  obligation  under  the 
covenant.     On  the  other  hand,  if  the  assignment  were-  allowed  to  operate 
on  a  covenantor,  and  place  the  assignee  of  the  land  under  him  in  the  same 
position  which  he  himself  held,  then  the  burden  of  the  covenant  would, 
without  any  reason,  be  imposed  upon  a  party  who  might  never  before  have 
heard  of  its  existence,  and  who  might  well  complain  of  being  exposed  to  the 
obligation  of  a  pontract,  independently  both  of  consent  and  consideration. 
Such  was  the  case  where  the  covenantor  took  nothing  in  the  land  at  the 
time  of  covenant  made  ;  but  it  is  evident  that  if  there  was  an  accompanying 
conveyance  to  him,  the  case  altogether  changed.     The  performance  of  the 
covenant  might  be  presumed  to  be  part  consideration  for  the  conveyance, 
without  which  it  would  not  have  been  made  ;  and  therefore  the  assignee 
was  fairly  liable  to  an  obligation,  which  partook  in  some  degree  of  the 
nature  of  a  reddendum  for   his  tenure.     When,  however,  the  statute  of 
Q,uia  Emptores  destroyed  that  tenure  as  between  feoffor  in  fee  and  feoffee, 
the  rights  of  the  original  grantor  of  an  estate  may  be   presumed  to  have 
undergone  the  same  alteration  as  to  his  right  of  suit  on  covenant,  as  that 
which   changed  rents-service  reserved   in  such  conveyances,  into  rents- 
charge,     ft  became  the  policy  of  the  law  to  discourage  all  relations  between 
the  vendor  and  vendee  of  land,  when  no  reversion  existed  in  the  former  ; 
and  thus  the  covenants  of  the  latter  were  put  upon  the  same  footing  as  if 
made  by  the  tenant  of  land  who  took  no  conveyance  from   the  covenantee. 
But  in  Pennsylvania,  and  wherever  the  statute  of  Quia  Emptores  is  not  in 
force,  as  the  reasons  for  this  policy  of  the  law  have  altogether  ceased,  it 
would  seem  entirely  reasonable  to  determine   the  question,  whether  the 
burden  of  a  covenant  shall  run  with  land  by  the  old  test,  of  whether  it  has 
been  accompanied  by  a  conveyance.     If  it  has,  it  would  seem  only  fair  that 
the    assignee   should  continue  to  perform   that  which  must  be  regarded 
■  as    having    been    part    of  the    price    of  his   land,   and   without   which  it 
would  not  have  been  transmitted  from  the  covenantee  through  his  assignor 
to  himself.     The  land  which  he  holds  is  the  consideration  which  he  has 
received  for  his   contract.     When,  on    the   contrary,  the  tenant  of  lands 
charged  them  by  a  covenant  without  receiving  them  at  the  same  time  from 
the  covenantee,  the  consideration  of  the  covenant  must  be  altogether  foreign 
to  the  lands  ;  and  on  the  other  hand,  the  promised  performance  of  the  cove- 
nant cannot  be  regarded  as  the  ground  on  which  they  came  into  the  hands 


138  smith's  LEADING  CASES. 

of  the  covenantor,  and  on  which  he  has  been  enabled  to  transmit  them  to 
the  assignee  from  him.  These  relations,  which  were  all  indicated  by  the 
old  phrase  of  privity  of  estate,  being  absent,  there  seem  no  reasons  why 
the  assignee,  in  the  necessary  absence  of  privity  of  contract  should  be 
bound  by  the  covenant,  in  consequence  of  the  assignment. 

In  restraining  the  power  of  imposing  a  burden  upon  land,  by  means  of  a 
covenant  to  those  cases  in  which  an  estate  was  transferred  from  the  person 
by  whom  it  was  imposed,  and  in  permitting  it  where  such  transfer  occurred, 
although  of  a  fee,  the  common  law  followed  the  same  policy  in  the  case  of 
covenants  as  in  the  case  of  conditions,  which  could  never  be  attached  to  an 
estate,  save  where  it  passed  at  the  time  of  condition  reserved,  and  from 
the  person  by  whom  it  was  called  into  being.  Where  such  conveyance 
occurs,  it  would  seem  that  no  future  party  has  a  right  to  complain  of  any 
burden  attendant  upon  it,  whether  of  covenant  or  condition;  since,  inde- 
pendently of  the  conveyance,  neither  estate  nor  burden  could  have  reached 
him.  Any  objections  which  in  such  a  case  can  apply  to  the  fetters 
imposed  by  covenants  on  subsequent  assignees,  must  apply  with  greater 
force  to  conditions,  which  take  a  wider  range,  and  need  not  even  be  per- 
formed on  the  land.  The  limits,  therefore,  which  the  policy  of  the  law  has 
set  to  the  operation  of  conditions,  cannot  be  regarded  as  too  extensive  for  that 
of  covenants. 

H. 


[*39]  *SEMAYNE'S  CASE. 


MICH.  2  JAC.  1.— IN  THE  KING'S  BENCH. 

[REPORTED  5  COKE,  91.] 

Sheriff  when  entitled  to  break  doors — Application  of  Maxim  "  Every  man's  house  is  his 

castle." 

In  an  action  on  the  case  by  Peter  Semayne,  plaintiff,(rt)  and  Richard 
Gresham,  defendant,  the  case  was  such  ;  the  plaintiff  and  one  George 
Berisford  were  joint  tenants  of  a  house  in  Blackfriars  in  London  for  years. 
George  Berisford  acknowledged  a  recognizance  in  the  nature  of  a  statute 
staple-j-  to  the  plaintifliand  being  possessed  of  divers  goods  in  the  said  house 
died,  by  which  the  defendant  was  possessed  of  the  house  by  survivorship 

(a)  Co.  Ent.  12,  pi,  11.  Mo.  668.  Yelv.  28,  29.  Cr.  El.  908.  209.  2  Roll.  Rep.  294. 
See  the  report  of  this  case  in  Sir  F.  Moore,  668,  where  it  appears  that  there  was  a  division 
of  opinion  among  the  judges. 

Whether  a  bailiff,  &c.,  may  break  a  house  to  do  execution  or  not.  See  6  Mod.  105,  &c. 
Ibid.  [See  Hob.  263,  where  the  parties  were  punished  for  executing  the  process  of  law  in 
a  riotous  manner.] 

t  See  an  account  of  this  sort  of  recognizance,  and  the  mode  of  proceeding  thereon,  2 
Wms.  Saund.  70,  in  notis. 


semayne's   case.  139 

in  which  the  goods  continued  and  remained  ;  the  plaintiff  sued  process  of 
extent  on  the  statute  to  the  sherifis  of  London;  the  sheriffs  returned  the 
conusor  dead,  on  which  the  plaintiff  had  another  writ  to  extend  all  the  lands 
which  he  had  at  the  time  of  the  statute  acknowledged  or  at  any  time  after, 
and  all  his  goods  which"  he  had  at  the  day  of  his  death  ;  which  writ  the 
plaintiff  delivered  to  the  sheriffs  of  London,  and  told  them  that  divers 
goods,  which  were  the  said  George  Berisford's  at  the  time  of  his  death, 
were  in  the  said  house  :  and  thereupon  the  sheriffs,  by  virtue  of  the  said 
writ,  charged  a  jury  to  make  inquiry  according  to  the  said  writ,  and  the 
sheriffs  and  jury  accesserunt  ad  domun  prcedictum  ostio  domus  prgedict' 
aperto  existen'  et  bonis  prasdictis  in  prsedicta  domo  tunc  existen',  and  they 
offered  to  enter  the  said  house,  to  extend  the  goods  according  to  the  said 
writ:  and  the  defendant  prasmissorum  non  ignarus,  intending  to  disturb 
the  execution,  ostio,  praed'  domus  tunc  aperto  existen',  claudebat  contra 
viscom'  et  jurator',  prsed';  whereby  they  could  not  come,  and  extend  the 
said  goods,  nor  the  sheriff  seize  them,  by  which  he  lost  the  *benefit  ^  ^^^  -, 
and  profit  of  his  writ,  &c.  '  And  in  this  case  these  points  were  <-  -' 
resolved  ; — 

1.  That  the  house  of  every  one  in  to  him  as  his(b)  castle  and  fortress, 
as.  10 ell  for  his  defence  against  injury  and  violence,  as  for  his  repose; 
and  although  the  hfe  of  man  is  a  thing  precious  and  favoured  in  law  ;  so 
that  although  a  man  kills  another  in  his  defence,  or  kills(c)  one  per 
infortun',  without  any  intent,  yet  it  is  felony,  and  in  such  case  he  shall 
forfeit  his  goods  and  chattels,  for  the  great  regard  Avhich  the  law  has  to  a 
man's  life  ;  but  if  thieves  come  to  a  man's(rf)  house  to  rob  him,  or  murder, 
and  the  owner  or  his  servants  kill  any  of  the  thieves  in  defence  of  himself 
and  his  house,  it  is  not  felony,  and  he  shall  lose  nothing,  and  therewith 
agree  3  Eliz. ;  Coron.  303  and  305 ;  and  26  Ass.  pi.  23.  So  it  is  held  in 
21  H.  7.  39;  every  one  may  assemble  his  friends  and  neighbour s{^e)  to 
defend  his  house  against  violence:  but  he  cannot  assemble  them  to  go 
with  him  to  the  market(/)  or  elsewhere  for  his  safeguard  against  violence  : 
and  the  reason  of  all  this  is,  because  domus  sui  cuique  est  tutissimum 
refugium. 

2.  It  was  resolved,  when  any  house  is  recovered  by  any  real  action,  or 
by  eject^  firmse,  the  sheriff  may  break  the  house  and  deliver  the  seisiii  or 
possession  to  the  demandant  or  plaintiff,  for  the  words  of  the  writ  are, 
habere  facias  seisinam,  or  possessionem,  &c.,  and  after  judgment  it  is  not  the 
house,  in  right,  and  judgment  of  law,  of  the  tenant  or  defendant. 

3.  In  all  cases  when  the  king{g)  is  party,  the  sheriff  (if  the  doors  be 
not  open)  may  break  the  party's  house,  either  to  arrest  him,  or  to  do  other 
execution  of  the  king's  process,  if  otherwise  he  cannot  enter.  But  before 
he  breaks  it,  he  ought  to  signify  the  cause  of  his  coming,  and  to  make 

(h)  3  Inst.  162.  Cr.  El.  753.  2  Co.  32,  a.  7  Co.  6,  a.  8  Co.  126,  a."  11  Co.  82,  a. 
1  Bulst.  146.     Stanf.  Cor.  14,  b. 

(c)  Co.  Lit.  391,  a.     Hale's  pi.     Cor.  32.     Stanf.  Cor.  15,  c.  16,  d. 

{d)  3  Inst.  56.     Stanf.  Cor.  14,  a.     Cor.  192.     3  E.  3.     Cor.  205.  330.     Br.  Cor.  100. 

1  Roll.  Rep.  182.     22  H.  8,  c.  5. 

(0  11  Co.  82,  b.    Br.  Riots,  &c.  1.    21  H.  7,  39,  a.    Fitz.  Tresp.  246.    2  Inst.  161, 162. 
(/")  11  Co.  82,  b.     1  Roll.  Rep.  182. 

(g)  Benl.  112.  1  Bulstr.  146.  Cr.  El.  908,  909.  Moor,  606.  668.  Yclv.  28,  29. 
Cr.  Car.  5.37,  538.     3  Inst.  161.     Dy,  36,  pi.  40.     12  Co.  131.     4  Inst.  177.    Goldsb.  79. 

2  Jones,  233,  234.    4  Leon.  41.     13  E.  4,  9,  a. 


l40  smith's  leading  cases. 

request  to  open  the  doors;  and  that  appears  well  by  the  statute  of  West- 
minster, 1,  c.  17,  (which  is  but  an  affirmance  of  the  common  law)  as  here- 
after appears,  for  the  law  without  a  default  in  the  owner  abhors  the  destruc- 
tion or  breaking  of  any  house  (which  is  for  the  habitation  and  safety  of 
man)  by  which  great  damage  and  inconvenience  might  ensue  to  the  party, 
when  no  default  is  in  him  ;  for  perhaps  he  did  not  know  of  the  process,  of 
which  if  he  had  notice,  it  is  to  be  presumed  that  he  would  obey  it ;  and 
that  appears  by  the  book  in  18  Eliz.  2, (A)  Execut.  2'52,  where  it  is  said 
that  the  king's  officer  who  comes  to  do  execution,  &c.,  may  open 
L  -I  the  doors  *which  are  shut,  and  break  them,  if  he  cannot  have  the 
keys;  which  proves  that  he  ought  first  to  demand  them.  7  Eliz.  3,(i) 
16.  J.  beats  R.  so  as  he  is  in  danger  of  death,  J.  flies  and  thereupon  hue 
and  cry  is  made,  J.  retreats  into  the  house  of  T.,  they  who  pursue  him,  if 
the  house  be  kept  and  defended  ivith  force  (which  proves  that  first  request 
ought  to  be  made,)  may  lawfully  break  the  house  of  T.,  for  it  is  at  the 
king's  suit.  27  Ass.  p.  66.  The  king's  bailiff  may  distrain  for  issues(A;) 
in  a  sanctuary.  27  (28)  Ass.  p.  35.  By  force  of  a  capias  on  an  indict- 
ment of  trespass  the  sheriff  may(Z)  break  his  house  to  arrest  him;  but  in 
such  case,  if  he  breaks  the  house  when  he  may  enter  without  breaking  it, 
(that  is,  on  request  made,  or  if  he  may  open  the  door  without  breaking,) 
he  is  a  trespasser.  41  Ass.  15.  On  issue  joined  on  a  traverse  of  an  office 
in  chancery.  Venire  facias  was  awarded  returnable  in  the  King's  Bench, 
without  mentioning  non(m)  omittas  propt'  aliquam  libertat'  :  yet,  forasmuch 
as  the  king  is  party,  the  writ  of  itself  is  non  omittas  propt'  aliquam  libertat'. 
9  Eliz.  4.  9  ;  that  for  felony(?r)  or  suspicion  of  felony,  the  king's  officer 
may  break  the  house  to  apprehend  the  felon,  and  that  for  two  reasons:  1. 
For  the  commonwealth,  for  it  is  foi:  the  commonwealth  to  apprehend  felons. 

2.  In  erery  felony  the  king  has  interest,  and  where  the  king  has  interest, 
the  writ  is,  non  omittas  propter  aliquam  libertatem  ;  and  so  the  liberty  or 
privilege  of  an  house  doth  not  hold  against  the  king. 

'4.  In  all  cases  ivhen  the  door  is{o)  open  the  sheriff  may  enter  the  house, 
and  do  execution  at  the  suit  of  any  subject,  either  of  the  body,  or  of  the 
goods  ;  and  so  may  the  lord  in  such  case  enter  the  house[p')  and  distrain 
for  his  rent  or  service.     38  Hen.  6.  26,  a.  8  Eliz.  2  Distr.  21,  &  33  Eliz. 

3.  Avow.  256';  the  lord  may  distrain  in  the  house,  although  lands  are  also 
held  in  which  he  may  distrain.  Vide  29(7)  Ass.  49.  But  the  great  ques- 
tion in  this  case  was,  if  by  force  of  a  capias  or  fieri  facias  at  the  suit  of 
the  pcirty  the  sheriff,  after  request  made  to  open  the  door,  and  denial  made, 
might  Ircak  the  defendant's  house  to  do  execution,  if  the  door  be  not  opened. 
And  it  was  objected,  that  the  sheriff  might  well  do  it  for  divers  causes.  1. 
Because  it  is  by  process  of  law  ;  Lucas,  290 ;  and  it  was  said,  that  it  would 
be  granted  on  the  other  side,  that  a  house  is  not  a  liberty;  for  if  a  fieri 
facias  or  a  capias  be  awarded  to  the  sheriff  at  the  suit  of  a  common  person, 

(//)  Yelv.  29.     5  Co.  92,  b.     Cr.  El.  909.     Moor,  668. 
.   (i)  4  Iiist.  177.  (k)  Br.  Distress,  35.     Br.  Trespass,  151. 

(?)  Fitz.  Trespass,  232.     Br.  Trespass,  248. 

(m)  Bro.  Prerogative  le  Roy,  109.  Br.  Franchise,  18.  Br.  Process,  102.  Fitz.  Pre- 
rogative, 21. 

(n)  13  E.  4,  9,  a.     Fitz.  Bar.  110.     4  Inst.  177.     1  Bulstr.  146.     2  Bulstr.  61. 

(0)  1  Brown,  50.    Cr.  Jac.  486.  (p)  Br.  Trespass,  266.     Br.  Issue,  26. 

Iq)  Br.  Disseisor,  52.    Fitz.  Assize,  286. 


semayne's  case.  141 

and  he  makes  a  *mandate  to  the  baiHffof  a  liberty  who  has  return  ^  ,.  ,^  ., 
of  writs,  who  nullum  dedit  respons,  in  that  case  another  writ  shall  L  -• 
issue  with  nom  omittas  propter  aliquatn  libertatem  ;  yet  it  will  be  said  on 
the  other  side  that  he  shall  not  break  the  defendant's  house,  .as  he  shall  do 
of  another  liberty  :  Cro,  Jac,  555  ;  for  whereas  in  the  county  of  Suffolk 
there  are  two  liberties,  one  of  St.  Edmund  Bury  and  the  other  of  St.  Ethel- 
dred  of  Ely,  suppose  a  capias  comes  at  the  suit  of  A.  to  the  sheriff  of  Suf- 
folk to  arrest  the  body  of  B,,  the  sheriff  makes  a  mandate  to  the  baihff  of 
the  liberty  of  St.  Etheldred,  who  makes  no  answer,  in  that  case  the  plaintiff 
shall  have  a  writ  of  non  omittas,  and  by  force  thereof  he  may  arrest  the 
defendant  within  the  liberty  of  Bury,  although  no  default  was  in  him.  2. 
Admitting  it  be  a  liberty,  the  defendant  himself  shall  never  take  advantage 
of  a  liberty  :  as  if  the  bailiff  of  a  liberty  be  defendant  in  any  action,  and 
process  of  capias  or  fieri  facias  comes  to  the  sheriff  against  him,  the  sheriff 
shall  execute  the  process  against  him  ;  for  a  liberty  is  always  for  the  benefit 
of  a  stranger  to  the  action.  3.  For  necessity  the  sheriff  shall  break  the  defend- 
ant's house  after  such  denial  as  is  aforesaid,  for  at  the  common  law  a  man 
should  not  have  any  execution  for  debt,  but  only  of  the  defendant's  goods. 
Suppose  then  the  defendant  would  keep  all  his  goods  in  his  house,  the 
defendant  himself,  by  his  own  act,  would  prevent  not  only  the  plaintiff  of 
his  just  and  true  debt,  but  there  would  also  be  a  great  imputation  to  the 
law,  that  there  should  be  so  great  a  defect  in  it,  that  in  such  case  the  plain- 
tiff by  such  shift  without  any  default  in  him  should  be  barred  of  his  execu- 
tion. And  the  book  of  18  Eliz.(p)  Execut.  252,  was  cited  to  prove  it,  where 
it  is  said,  that  it  is  not  lawful  for  any  one  to  disturb  the  king's  officer  who 
comes  to  execute  the.  king's  process  ;  for  if  a  man  might  stand  out  in  such 
manner,  a  man  would  never  have  execution,  but  there  appears  (as  has  been 
said)  that  there  ought  to  be  request  made  before  the  sheriff  breaks  the  house. 
4.  It  was  said,  that  the  sheriffs  were  officers  of  great  authority,  in  whom  the 
law  reposed  great  trust  and  confidence,  and  are  to  be  of  sufficiency  to  answer 
for  all  wrongs  which  should  be  done  ;  and  they  had  custodiam  comitatum, 
and  therefore  it  should  not  be  presumed  that  they  would  abuse  the  house  of 
any  one,  by  colour  of  doing  their  office  in  execution  of  the  king's  writs, 
*against  the  duty  of  their  office,  and  their  oath  also".  But  it  was  ^.^  ^ 
resolved,  that  it  is  not  lawful  for  the  sheriff  {on  request  made  and  L  J 
denial)  at  the  suit  of  a(q)  common  person,  to  break  the  defendant's  house, 
sc.  to  execute  any  process  at  the  suit  of  any  subject ;  for  thence  would 
follow  great  inconvenience,  that  men  as  well  as  in  the  night(r)  as  in  the 
day  should  have  their  houses  (which  are  their  castles)  broke,  by  colour 
whereof  great  damage  and  mischief.might  ensue  ;  for  by  colour  thereof,  on 
any  feigned  suit,  the  house  of  any  man,  at  any  lime,  might  be  broke  when 
the  defendant  might  be  arrested  elsewhere,  and  so  men  would  not  be  in 
safety  or  quiet  in  their  own  houses.     And  although  the  sheriff  be  an  officer 

(p)  Yelv.  29,  5  Co.  91,  b.  Moor,  668.  Cr.  El.  409.  O.  Bcnl.  121.  See  18  E.  4,  4, 
contra. 

{q)  1  Jones,  429,  430.  1  Brownl.  50.  1  Bulstr.  146.  Cr.  Jac.  556.  O.  Benl.  121.  4 
Inst.  177.  Palm.  53.  Dyer,  36,  pi.  41.  Moor,  668.  Cr.  Car.  537,  538.  Cr.  El.  908,  90». 
Yelv.  29.  Hob.  62.  263,  264.  4  Leon.  41.  11  Co.  82.  March.  34,  18  Ed.  4.  4,  a.  Br. 
Execu.  100,     Br.  Trespass,  390. 

(r)  9  Co,  66,  a.    Cr.  Jac.  80.  4S6.    Jent.  Cent.  291.     Hale's  pi.  Cor.  45.     Owen,  63. 


142  smith's  leading  cases. 

of  great  authority  and  trust,  yet  it  appears,  by  experience,  that  the  king's 
writs  are  served  by  bailiffs,  persons  of  little  or  no  value :  and  it  is  not  to  be 
presumed,  that  all  the  substance  a  man  has  is  in  his  house,  nor  that  a  man 
would-  lose  his  liberty,  which  is  so  inestimable,  if  he  has  sufficient  to  satisfy 
his  debt.  And  all  the  said  books,  v^^hich  prove  that  when  the  process  con- 
cerns the  king,  the  sheriff  may  break  the  house,  imply  that  at  the  suit  of 
the  party  the  house  may  not  be  broken  :  otherwise  the  addition  (at  the  suit 
of  the  king)  would  be  frivolous.  And  with  this  resolution  agrees  the  book 
in(s)  13  Eliz.  4.  9,  and  the  express  difference  there  taken  between  the  case 
of  felony,  which  (as  has  been  said)  concerns  the  commonwealth,  and  the 
suit  of  any  subject,  which  is  for  the  particular  interest  of  the  party,  as  there 
it  is  said.  In(if)  18  Eliz.  4.  4,  a,  by  Littleton  and  all  his  companions  it  is 
resolved,  that  the  sheriff  cannot  break  the  defendant's  house  by  force  of  a 
fieri  facias,  but  he  is  a  trespasser  by  the  breaking,  and  yet  the  executioa 
which  he  then  doth  in  the  house  is  good.  And  it  was  said,  that  the  said 
book  of(?<)  18  Eliz.  2,  was  but  a  short  note,  and  not  any  case  judicially 
adjudged,  and  it  doth  not  appear  at  whose  suit  the  case  is  intended,  but  it 
is  an  observation  or  collection  (as  it  seems)  of  the  reporter.  And  if  it  be 
intended  of  a  Q,uo(«)  minus,  or  other  action  in  which  the  king  is  party,  or 
is  to  have  benefit,  the  book  is  good  law. 

5.  It  ivas  resolved,  that  the  house  of  any  one  is  not  a  castle  or  privilege 
but  for  himself  and  shall  not  extend  to  protect  any  [iv)  person  tvho  flies  to 
his  house,  or  the  goods  of  any  other  which  are  brought  and  conveyed  into 
J.  .  -.  his  house,  to  prevent  a  lauful  *  execution,  and  to  escape  the  ordi- 
L  -'  nary  process  of  law  ;  for  the  privilege  of  his  house  extends  only  to 
him  and  his  family,  and  to  his  own  proper  goods,  or  to  those  which  are 
lawfully  and  without  fraud  and  covin  there  ;  and  therefore  in  such  cases, 
after  denial  on  request  made,  the  sheriff  may  break  the  house  ;  and  that  is 
proved  by  the  statute  of  West.  1,  c.(.r)  17,  by  which  it  is  declared,  that  the 
sheriff  may  break  an  house  or  castle  to  make  replevin,  when  the  goods  of 
another  which  he  has  distrained  are  by  him,  i.  e.  conveyed  to  his  house  or 
castle,  to  prevent  the  owner  to  have  a  replevin  of  his  goods ;  which  act  is 
but  an  affirmance  of  the  common  law  in  such  points.  But  it  appears  there, 
that,  before  the  sheriff  in  such  case  breaks  the  house,  he  ought  to  demand 
the  goods  to  be  delivered  to  him :  for  the  words  of  the  statute  are,  "  after 
that  the  cattle  shall  be  solemnly  demanded  by  the  sheriffs,  &c." 

6.  It  was  resolved,  admitting  that  the  sheriff  after  denial  made  might 
have  broke  the  house,  as  the  plaintiff's  counsel  pretend  he  might,  then  it 
follows  that  he  has  not  done  h.\s[y)  duty,  for  it  doth  not  appear,  that  he 
made  any  request  to  open  the  door  of  the  house.  Also  the  defendant,  as 
this  case  is,  has  done  that  which  he  might  well  do  by  the  law,  scil.  to  shut 
the  door  of  his  own  house. 

Lastly,  the  general  allegation, (z)  premissorum  non  ignarus,  was  not  suffi- 
cient in  this  case,  where  the  notice  of  the  premises  is  so  material;  but  in 

(s)  13  E.  4.  9,  a.     5  Co.  92,  a.     Fitz.  Bar.  11.     4  Inst.  177. 
It)  Cro.  Eliz.  909,     Yelv.  29.     Br.  Execution,  100.     Br.  Trespass,  309. 
(?/)  18  E.  2.   Execut.  252.   Yelv.  29.   Moor,  668.  Cr.  EL  909.    5  Co.  91  b.  92  b.    Bend. 
121.  ■   (w)  Plowd.  208,  a.    2  Show.  87. 

(wj)  Cr.  Car.  544.  {x)  2  Inst.  192, 193,  194. 

(y)  Stile,  447.  (2)  Hard.  2.     1  Mod.  Rep.  286. 


SE  M  A  YNe's     case. 


143 


this  case  it  ought  to  have  been  certainly,  and  directlJ^  alleged  ;  for,  without 
notice  of  the  process  of  law,  and  of  the  coining  of  the  sheriff  with  the  jury 
to  execute  it,  the  shutting  of  the  door  of  his  own  house  was  lawful.  And 
judgment  was  given  against  the  plaintiff. 


Although  the  sheriff,  as  appears  from 
this  case,  may  justify  (after  request  made) 
the  breaking  open  the  doors  of  a  third 
person's  house  in  order  to  execute  the 
process  of  the  law  upon  the  defendant,  or 
his  property,  removed  thither  in  order  to 
avoid  an  execution,  still  he  does  so  at  his 
peril ;  for,  if  it  turn  out  that  the  defendant 
was  not  in  the  house,  or  had  no  property 
there,  he    is   a    trespasser,   Johnson  v, 
Leigh,  1  Marsh,  565,  6  Taunt. ;  [Mor- 
rish  V.  Murrey,  13  M.  &  VV.  52 ;]  Rat- 
cliffe  V.  Burton,  3  B.  &  P.  229,  explained 
in  Hutchinson  v.  Birch,  4  Taunt.  627; 
Com.  Dio-.  Execution,  C.  5.    See  White 
V.  VVilshire,  Palm.  52;  2  Rolle,   138; 
Biscop  V.  White,  Cro.   Eliz.  759;  and 
judgment  in  Cooke  v.  Birt,  5  Taunt.  769. 
But  his  right  to  enter  the  defendant's 
own  house  does  not  depend  on  any  such 
contingency,  for  that  is  the  most  natural 
place    for  the   defendant  or   his   goods 
to   be.      [S.    P.    Kneas   v.    Fitler   and 
others,    2    Sergeant    &,    Rawle,   263.] 
And  on  the  same  principle,  where  there 
is  a  judgment  against  an  administatrix 
de  bonis  testatoris,  and  she  marries,  the 
sheriff  may  enter  her  husband's  house  to 
search   for  the   goods  of  the    testator. 
r*4CL-|  Cooke  v.   Birt,  5  Taunt.  *771 ; 
L  '*''Jand,  although   the   sheriff  must 
not  break  open  the  outer  door  of  the 
defendant's  house   in  order  to  execute 
the    process   (see   Kerbey    v.    Denbey, 
1  M.  &  W.  336,)  yet,  having  obtained 
admission  to  the  house,  he  may  justify 
the    afterwards    breaking    open    inrjer 
doors  in  order  to  execute  the  process,  as 
he  may  cupboards,  trunks,  &c.     Lee  v. 
Gansel,  Cowp.  1.     [S.   P.   Williams  v. 
Spencer,  5  Johnson,  352 ;  The  State  v. 
Thackam  &  Mason,  1  Bay,  358.]     R.  v. 
Bird,  2  Show.  87 ;  Hutchinson  v.  Birch, 
4  Taunt.  619  ;  see  Ratcliff  v.  Burton,  3 
B.   &  P.  223.     And   the   maxim,  that 
"a   man's    house    is  his   castle,"   only 
extends  to  his  duielUng-house ;  there- 
fore, a  barn  or  out-house,  not  connected 
with  the  dwelling-house,  may  be  broken 
open.     Penton  v.  Browne,  1  Sid.   181. 
186,     And  if  the  defendant,  after  being 
arrested,  escape,  the  sheriff  may  break 


open  either  his  own  house,  or  that  of  a 
strano-er,  for    the   purpose  of  retaking 
him.     Anon.  6  Mod.   105,    Lofft,  390; 
vide  Lloyd  v.  Sandilands,  8  Taunt.  250. 
[And   the  principle  is  the  same  where 
the  officer  has  made  a  levy  upon  goods; 
the  rule  in  its  true  form  being,  that  for 
the  purpose  of  serving  civil  process  in 
the  first  instance,  whether  against  the 
person  or  the  goods  of  the  defendant  in 
the   process,  the  officer  cannot  justify 
the  breaking  of  the  outward  door  of  the 
defendant's   dwelling-house,  but  where 
the  exemtion  of  the  process  has  been 
properly   commenced,   the .  officer   may 
afterwards  break   the  outward  door,  if 
necessary,  for  the  purpose  of  continuing 
and  completing  the  execution;  Glover 
v.   Whittenhali,   6   Hill,    .597.]      It   is 
above  stated  that  the  sheriff  cannot  jus- 
tify breaking  open"  the  outer  door  of  a 
a  stranger's  house,  unless  it  prove  that 
the  defendant  or  his  goods  are  actually 
there;  if  they  be  not  there  he  will  be  a 
trespasser.       This    doctrine    has    been 
carried  still    farther:    for    it  has  been 
thought  that  he  cannot,  even  though  he 
may  have  grounds  for  suspicion,  justify 
entering  the  dwelling-house  of  a  third 
person,  although  he  break  no  door,  un- 
less it  prove  in  the  event  that  the  defen- 
dant or  his  goods  were  actually  therein. 
In  Cooke  v.  Birt,  5  Taunt.  765,  Dallas, 
J.,  says,  "the  sheriff  may  enter  the  house 
of  a  stranger  if  the  door  be  open  ;  but  it 
is   at   his   peril  whether  the  goods  be 
found  there  or  not ;  if  they  be  not  he  is 
a  trespasser."   The  expressions  of  Gibbs, 
C.  J.,  are  to  the  same  effect.   In  Johnson 
V.  Leigh,  6  Taunt.  245,  in  trespass  for 
breaking   and   entering   the   plaintiff's 
house,  and  breaking  the   inner   doors, 
locks,  &c.,  the    defendants,  as  sheriff, 
justified     entering    under    a    testatum 
capias,  against  T.   Johnson,    the   out'er 
door  being  open,  and  there  being  reason- 
able and  sufficient  cause  to  suspect  and 
believe,   and    the  defendant  suspecting 
and  believing,  that  T.  Johnson  was  in 
the  house.     On  demurrer,  Gibbs,  C.  J., 
said,  "  In  Hutchinson  v.  Birch,  4  Taunt. 
619,  the  goods  were  in  the  house,  here 


144 


smith's  leading  cases. 


the  defendant  only  avers  a  suspicion  that 
T.  Johnson  was  in  the  house ;  I  protest 
that  the  court  have  not  decided  this 
point,  or  dropt,  in  the  case  of  Hutchin- 
son V.  Birch,  anything  which  favours 
the  opinion,  that  it  may  not  go  abroad 
to  the  world  that  we  have  so  decided." 
Leave  was  given  to  amend  the  plea. 
However  it  is  apprehended  that  circum- 
stances might  exist, -under  which  the 
sheriff  would  be  justified  in  entering  the 
house  of  a  stranger  on  suspicion,  though 
the  defendant  were  not  actually  there. 
Supposing  for  instance,  that  the  defen- 
dant were  on  a  visit  with  the  stranger, 
the  dwelling-house  of  the  stranger  would 
seem  to  be,  pro  tempore,  the  defendant's 
dwelling-house,  so  as  to.  entitle  the 
sheriff  to  enter  it;  upon  the  principle 
on  which  Cooke  v,  Birt  was  decided, 
namely,  that  of  .its  being  the  place  where 
it  would  be  natural  to  expect  the  defen- 
dant, or  his  goods  to  be.  I  have  seen  a 
plea  framed  on  that  idea,  and  indeed  the 
point  is  virtually  so  ruled  by  Sheere  v. 
Brookes, 2  H.  Bl.  120,  where  it  was  held, 
that,  when  the  defendant  resided  in  the 
house  of  a  stranger,  the  bail  above  might 
justify  entering  it  in  order  to  seek  for 
him,  the  outer  door  being  then  open  ; 
for,  said  Lord  Loughborough,  "  I  see 
no  difference  between  a  house  of  which 
he  is  solely  possessed,  and  a  house  in 
which  he  resides  wiUi  the  consent  of 
another."  It  seems  to  follow  from  this, 
that  as  a  house  in  which  the  defendant 
habitually  resides  is  on  the  same  footing 
with  respect  to  executions  as  his  own 
house,  the  sheriff  would  not  be  justified 
in  breaking  the  outer  door  of  such  a 
house,  even  after  demand  of  admittance 
and  refusal.  There  may,  perhaps,  be 
another  case  in  which  the  sheriff  might 
justify  entering  the  house  of  a  stranger, 
upon  bare  suspicion,  viz.  if  the  stranger 
were  to  use  fraud,  and  to  inveigle  the 
sheriff'  into  a  belief  that  the  defendant 
was  concealed  in  his  house,  for  the  pur- 
pose of  favouring  his  escape,  while  the 
ofScers  should  be  detained  in  searching, 
or  for  any  other  reason,  it  might  be  held 
that  he  could  not  take  advantage  of  his 
own  deceit  so  as  to  treat  the  sheriff,  who 
entered  under  the  false  supposition  thus 
induced,  as  a  trespasser;  or,  perhaps, 
such  conduct  might  be  held  to  amount 
to  a  license  to  the  sheriff  to  enter.  See 
Price  V.  Harwood,  3  Camp.  108;  Walker 
V.  Willoughby,  6  Taunt.  530;  and  an 
anonymous  case  in  Chitty's  Gen.  Prac. 
of   the   Law,  1st   edit.   vol.  3,  p.  354, 


n.  X.  [But  in  Morrish  v.  Murrey,  13  M. 
&  W.  52,  a  plea  alleging  that  the  de- 
fendant in  an  execution  had  resided  in 
the  plaintiff's  house  for  six  months  next 
preceding  the  trespass,  and  that  the 
sheriff  had  good  ground  to  suspect  and 
believe,  and  did  actually  suspect  and 
believe,  that  the  person  was  then  in  the 
house,  was  decided  to  be  insufficient  in 
an  action  against  the  sheriff  for  entering 
the  plaintiff's  house ;  and  the  rule  was 
laid  down,  without  qualification  by  Al- 
derson,  B.,  that  "  a  party  who  enters  the 
house  of  a  stranger  to  search  for  and 
arrest  a^ defendant,  can  be  justified  only 
by  the  event."] 

The  distinction  taken  in  this  case 
*bet  ween  process  at  the  suit  of  the  r  ^ . /.  -j 
king  and  that  of  an  individual,  is  '-  ^ 
recognised  in  Burdett  v.  Abbott,  14  East, 
157 ;  Launock  v.  Brown,  2  B.  &  A.  592 ; 
2  Hale,  P.  C.117  ;  Foster  on  Homicide, 
p.  320. 

It  is  laid  down  in  the  text,  that,  before 
the  sheriff  breaks  the  outer  door  of  a 
stranger's  house,  in  those  cases  in  which 
he  has  a  right  to  do  so,  he  ought  to 
demand  admission ;  and  this  is  also 
necessary  when  he  breaks  open  the 
defendant's  own  doors,  in  order  to  exe- 
cute the  process  of  the  crown,  Launock 
v.  Brown,  2  B.  &  A.  592  ;  even  in  case 
of  felony.  Hale,  2  P.  C.  117;  Foster  on 
Plomicide,  p.  320 ;  or,  in  order  to  retake 
the  defendant  after  an  escape ;  see  Gen- 
ner  v.  Sparks,  1  Salk.  79  ;  6  Mod.  173 ; 
White  V.  Wilshire,  2  Rolle's  Rep.  138. 
But  though  it  was  considered  in  Ratcliffe 
V.  Burton,  3  B.  &  P.  223,  that  admission 
should  be  demanded  before  breaking  an 
inner  door,  the  contrary  was  decided  in 
Hutchinson  v.  Birch,  4  Taunt.  619. 
[In  Kneas  v.  Fitler  and  others,  2  Ser- 
geant &  Rawle,  263.  265,  the  opinion  of 
Foster,  that,  in  every  case,  civil  or 
criminal,  where  outer  doors  are  broken 
open,  there  must  be  a  previous  notifica- 
tion and  demand,  is  approved  of  by 
Yeates,  J.  ;  and  the  dicta  in  Glover  v. 
Whittenhall,  6  Hill,  597.  599,  recognize 
the  necessity  of  a  reasonable  demand 
before  the  outer  door  is  forced  for  the 
purpose  of  recapturing  goods  that  have 
been  levied  upon.  But  in  Allen  v.  Mar- 
tin and  others,  10  Wendell,  300,  where 
it  was  decided,  that  if  one  arrested  es- 
cape into  his  own  house,  the  officer,  to 
retake  him,  may  break  the  outer  door,  it 
was  held,  that  the  party's  conduct  in 
having  violently  opposed  and  thrust  out 
the  officer,  dispensed  with  the  necessity 


semayne's  case. 


145 


of  a  previous  notification  and  demand, 
as  being-,  in  such  a  case,  "  a  senseless 
ceremony."] 

The  law  upon  this  subject  is  so  well, 
and,  at  the  same  time,  briefly  summed 
up  by  Sir  Michael  Foster,  in  his  Dis- 
course of  Homicide,  pp.  319,  20,  that 
I  cannot  forbear  inserting  his  account 
of  it  in  ills  own  words,  it  is  as  fol- 
lows :■ — 

"  The  officer  cannot  justify  breaking 
open  an  outward  door  or  window  in 
order  to  execute  process  in  a  civil  suit, 
if  he  do  he  is  a  trespasser.  But  if  he 
findeth  the  outward  door  open,  and  enter- 
eth  that  way,  or  if  the  door  is  opened  to 
him  from  within,  and  he  entereth,  he 
may  break  open  inward  doors  if  he  find- 
eth that  necessary  in  order  to  execute 
his  process. 

"  The  rule,  that  '  every  mail's  house 
is  his  castle,^  when  applied  to  arrests  in 
legal  process,  hath  been  carried  as  far 
as  the  true  principles  of  political  justice 
will  warrant ;  perhaps  beyond  what,  in 
the  scale  of  sound  reason  and  good  policy, 
they  will  warrant.  But  this  rule  is  not 
one  of  tliose  that  will  admit  of  any  exten- 
sion ;  it  must,  therefore,  as  I  have  before 
hinted,  be  confined  to  the  breach  of 
windows,  and  outward  doors,  intended 
for  the  security  of  the  house  against  per- 
sons from  without  endeavouring  to  break 
in. 

"  It  must  likewise  be  confined  to  a 
breach  of  the  house  in  order  to  arrest 
the  occupier,  or  any  of  his  family,  who 
liave  their  domicil,  their  ordinary  resi- 
dence, there ;  for,  if  a  stranger,  whose 
ordinary  residence  is  elsewhere,  upon  a 
pursuit  taketh  refuge  in  the  house  of 
another,  this  is  not  his  castle,  he 
cannot  claim  the  benefit  of  sanctuary 
in  it. 

"  The  rule  is  likewise  confined  to 
cases  of  arrest,  in  the  first  instance  ;  for, 
if  a  man,  being  legally  arrested  (and 


laying  hold  of  the  prisoner  and  pro- 
nouncing the  words  of  arrest  is  an  actual 
arrest,)  escapes  from  the  officer  and 
takes  shelter,  though  in  his  own  house^ 
the  officer  may,  upon  fresh  suit,  break 
open  doors  in  order  to  retake  him; 
having  first  given  due  notice  of  his 
business  and  demanded  admission,  and 
been  refused. 

"  And  let  it  be  remembered  that  not 
only  in  this,  but  in  every  case  where 
doors  may  be  broken  open  in  order  to 
arrest,  whether  in  cases  criminal  or 
civil,  there  must  be  such  notification, 
demand,  and  refusal,  before  the  parties 
concerned  proceed  to  that  extremity. 

"  The  rule  already  mentioned  must  ■ 
also  be  confined  to  the  case  of  arrest 
upon  process  in  civil  suits;  for,  where 
a  felony  hath  been  committed,  or  a 
dangerous  wound  given,  or  even  where 
a  minister  of  justice  comes  armed  with 
process  founded  on  a  breach  of  the  peace, 
tiie  party's  own  house  is  no  sanctuary 
for  him ;  doors  may,  in  any  of  these 
cases,  be  forced ;  the  notification,  de- 
mand, and  refusal  before-mentioned  hav- 
ing been  previously  made.  In  these 
cases,  the  jealousy  with  which  the  law 
watches  over  the  public  tranquillity  (a 
laudable  jealousy  it  is,)  the  principles  of 
political  justice,  I  mean  tiie  justice  which 
is  due  to  the  community,  ne  maleficia 
remaneant  impunita,  all  conspire  to 
supersede  every  pretence  of  private  in- 
convenience, and  oblige  us  to  regard  the 
dwellings  of  malefactors,  when  shut 
against  the  demands  of  public  justice,  as 
no  better  than  the  dens  of  thieves  and 
murderers,  and  to  treat  them  accord- 
ingly. But  bare  suspicion  touching  the 
guilt  of  the  party  will  not  warrant  a  pro- 
ceeding to  this  extremity,  though  a 
felony  has  been  actually  committed, 
unless  the  officer  comes  armed  with  a 
warrant  from  a  magistrate,  grounded  on 
such  suspicion. 


The  principles  of  Semayne's  case,  were  adopted  in  the  State  v.  Armfieki 
&  Wright,  2  Hawks,  246 ;  and  it  was  there  decided,  that,  where  one  of 
the  family,  upon  the  approach  of  the  oflicer,  had  run  into  the  house,  and 
attempted  to  close  the  door,  and  before  the  door  was  entirely  closed,  the 
officer  had  forced  it  open  and  entered,  the  officer  was  not  justified,  but  was 
liable  to  an  indictment.  In  Curtis  v.  Hubbard,  1  Hill's  N.  Y.  337,  it  is 
decided,  that  to  make  the  sherii!'  a  trespasser,  it  is  enough  that  the  outer 

Vol.  I 10 


146  smith's    LEADING    CASES. 

door  be  shut  ;  merely  opening  is  a  breaking  in  law  ;  lifting  a  latch  is  as 
much  a  breaking,  in  law,  as  the  forcing  of  a  door  bolted  with  iron ;  what- 
ever would  be  a  breaking  of  the  outer  door  in  burglary,  is  a  breaking 
by  the  sheriff;  sliding  down  a  window  fastened  by  pulleys,  would  in 
in  both  cases,  be  a  breaking :  it  is  decided  also,  that  a  guest,  or  mere 
visiter  at  the  house,  is  justified  in  resisting  the  sheriff",  and  rescuing  goods 
which  he  has  seised :  and  this  case  was  affirmed  in  the  Court  of  Errors. 
4  id.  437. 

It  is  said,  in  the  Year  Books,  the  principal  case,  and  elsewhere,  that 
though  the  entry  of  the  officer  is  illegal,  yet  the  execution  of  the  writ  is 
good.  The  point  is  examined  at  some  length  by  Shaw,  C.  J.,  in  Ilsley  v. 
Nichols  et  al.,  12  Pickering,  270,  and  it  is  shown  that  this  notion  is  errone- 
ous, and  that  the  execution  is  void:  and  this  case  is  adopted  and  acted  upon, 
in  The  People  y.  Hubbard,  24  Wendell,  369,  and  by  the  Court  of  Errors, 
in  Curtis  v.  Hubbard,  4  Hill's  N.  Y.  437.  But  the  merit  of  correcting  this 
venerable  error,  is  due  to  Theron  Metcalf,  Esquire,  to  whose  able  and  excel- 
lent note  to  Semayne's  case,  as  reported  by  Yelverton,  the  reader  is  re- 
ferred,— Metcalf 's  Yelverton,  29. 

H.  B.  W. 


[*47]  *CALYE'S  CASE. 

PASCH.  26  ELIZ.— IN  THE  KING'S  BENCH. 
[reported  8  COKE,  32.] 

Liability  of  Innkeepers. 

It  was  resolved,  per  totam  curiam,  that  if  a(a)  man  comes  to  a  common 
inn,  and  delivers  his  horse  to  the  hostler,  and  requires  him  to  put  him  to 
pasture,  which  is  done  accordingly,  and  the  horse  is  stolen,  the  innholder 
shall  not  answer  for  it ;  for  the  words  of  the  writ,  which  lieth  against  the 
hostler  are,  Cum  secundum  legem  et  consuetud'  regni  nostri  AnglisB(6) 
hospitatores  qut  hospitia  com'  tenent  ad  hospitandos  homines  per  partes  ubi 
hujusmodi  hospitia  existunt  transeuntes,  et  in  eisdem  hospitantes,  eorum 
bona  et  catalla  infra  hospitia  ilia  existentia  absque  substractione  seu  amis- 
sione  custodire  die  et  nocte  tenentur,  ila  quod  pro  defectu  hujusmodi  hospi- 
tatorum  seu  servientium  suorum  hospitibus  hujusmodi  damnum  non  eveniat 
uUo  modo,  quidam  malefaclorcs  quendam  equum  ipsius  A.  precii  40s.  infra 

(a)  1  Roll.  3,  4.     4  Leon.  96.     2  Brovvnl.  255. 

(b)  Plowd.  9,  b.  the  Register  is  false  printed,  scilicet,  Distractione  pro  substractione,  F. 
N.  B.  94  a.  and  b.  Book  of  Entries,  tit.  Hosteler,  f.  366  and  377.  1  And.  29.  3  Keb.  73. 
Dyer,  266,  b. 


calye'scase.  147 

hospitium  ejusdem  B.  &c.  inventum,  pro  defectu  ipsius  B.  ceperunt,  &c. 
Vide  Registr.  fol.  105,  inter  Brevia  de  Transgr'  and  F.  N.  B.  94,  a.  b.,  by 
which  original  writ  (which  is  in  such  case  the  ground  of  the  common  law) 
all  the  cases  concerning  hostlers  may  be  decided.  For,  1.  It  ought  to  be 
a(c)  common  inn;  for  if  a  man  be  lodged  with  another  (who  is  not  an  inn. 
holder)  upon  request,  if  he  be  robbed  in  his  house  by  the  servants  of  him 
who  lodged  him,  or  any  other,  he  shall  answer  for  it ;  for  the  words  are 
hospitatores  qui  com'  hospitia  tenent,  &c.  And  so  are  the  books  in(rf)  22 
Hen.  6,  21,  b.(e)  38,(/)  2  Hen.  4,  7,  h.{g)  11  Hen.  4,  45,  a.  b.(/i)  42  Ass. 
pi.  17.(i)42Ehz.  3,  11,  a.  10  El. (A")  Dyer,  266;  5  Mar.  Dyer.  158.(^) 
And  the  writ  need  not  mention  that  the  defendant  keeps  commune  hospi- 
tium, for  the  words  of  the  writ  in  the  *Register  are,  infra  hospi-  p+48"i 
lium  ejusdem  B.,  but  it  is  to  be  so  intended  in  the  writ;  for  the  L  J 
recital  of  the  writ  is,  hospitatores  qui  communia  hospitia  tenent,  &c.,  and 
the  one  part  ought  to  agree  with  the  other,  and  the  latter  w€uds  depend  on 
the  other,  and  the  plaintiff  ought  to  declare  that  he  keeps  commune  hospi- 
iMm  ;  and  so  the  said  books  in(m)  22  Hen.  6,  21. (n)  11  Hen.  4,  45,  a.  b.- 
40  Eliz.  Dyer,(o)  266,  &c.  are  well  reconciled. 

2,  The  words  are,  ad  hospitandos  homines  per  partes  ubi  hujusmodi 
hospitia  existunt  transeuntes,  et  in  eisdem  hospitantes  ;  by  which  it  appears 
that  common  inns  are  instituted  for  passengers  and  way-faring  men ;  for 
the  Latin  word  for  an  inn  is,  diversorium,  because  he  who  lodges  there  is 
quasi  divertens  se  a  via:  and  so  diversoriolum.  And  therefore,  if  a(p) 
neighbour,  who  is  no  traveller,  or  a  friend,  at  the  request  of  the  innholder 
lodges  there,  and  his  goods  be  stolen,  &c.  he  shall  not  have  an  action  ;  for 
the  writ  is  ad  hospitandos  homines,  &c.  transeuntes  in  eisdem  hospitan- 
tes, &c. 

3.  The  words  are,  eorum  bona  et  catalla  infra  hospitia  ilia  existentia, 
&c.  So  that  the  innholder,  by  law,  shall  answer  for  nothing  that  is  out  of 
his  inn,  but  only  for  those  things  which  are  infra  hospitium.  And  because 
the  horse,  which  at  the  request  of  the  owner  is  put  to  pasture,  is  not  infra 
hospitium,  for  this  reason  the  innholder  is  not' bound  by  law  to  answer  for 
him,  if  he  be  stolen  out  of  the  pasture ;  for  the  thing  with  which  the  host- 
ler shall  be  charged  ought  to  be  infra  hospitium;  and  therewith  agree  the 
book  in(ry)  U  Hen.  4,  45,  a.  b.  22  Hen.  6,  21,  b.  42  Eliz.  3.  11.  a.  b.  42 
Ass.  pi.  17,  where  Knivet,  C.  J.,  saith,  that  the  innholder  is  bound  to  answer 
for  himself,  and  for  his  family,  of  the  chambers  and  stables,  for  they  are 
infra  hospitium  ;  and  with  this  resolution  in  this  point  agreed  the  opinion 
of  the  Justices  of  Assize,  (viz.  the  two  Chief  Justices,  Wray  and  Ander- 

(c)  1  Roll.  2,  d.     1  Dr.  &  Stud.  137,  li.     Hob.  245. 

(d)  Fitz.  Hosteler,  2.  Br.  Action  sur  le  Case,  58. 

(e)  22  Hen.  6,  38,  b.     Fitz.  Hosteler,  1.  Br.  Action  sur  le  Case,  59. 

(/)  Fitz.  Hosteler,  4.  Br.  Action  sur  le  Case,  28.     Br.  Action  sur  le  Statute,  39. 

ig)  Br.  Action  sur  le  Case,  41.     Br.  General  Brief,  16.     Fitz.  Hosteler,  5. 

(A)  Br.  Action  sur  le  Case,  86.     Palm.  523.     1  Roll.  3. 

(i)  Fitz.  Hosteler,  6.     Br.  Action  sur  le  Case,  15.     Statham,  Action  sur  le  Case,  G. 

(Jc)  Dyer,  266,  pi.  9.     Postea,  33,  a.     3  Keb.  73. 

(Z)  Dyer,  158,  pi.  52.     1  And.  29,  30.     3  Keb.  73.     1  Roll.  3,  4. 

(m)  Antca,  32,  a.     Fitz.  Hosteler,  2,     Br.  Action  sur  le  Case,  58. 

(n)  1  Roll.  4.     Br.  Action  sur  le  Case,  41.     Br.  Gen.  Brief,  16.     Fitz.  Hosteler,  5. 

(o)  Dyer,  266,  pi.  9.     3  Keb.  73. 

[p)  1  Roll.  3.     E.  4.    2  Brown,  254.  (9)  1  Roll.  4. 


148  smith's     LEADING     CASES. 

son)  in  the  county  of  Suffolk  in  Lent  vacation,  26  Eliz,,  that  if  an(r)  inn- 
holder  lodges  a  man  and  his  horse,  and  the  owner  requires  the  horse  to  be 
put  to  pasture,  and  there  he  is  stolen,  the  innholder  shall  not  answer  for 
him.(s)  But  it  was  held  by  them,  that  if  the  owner  doth  not  require  it. 
but  the  innholder  of  his  own  head  puts  his  guest's  horse  to  grass,  he  shall 
answer  for  him  if  he  be  stolen,  &c.  And  it  is  to  be  observed,  that  thi? 
r*4Q  1  ^^^'^  hostler  is  derived  *ab  hostle  ;  and  hospitator,  which  is  used  in 
L  J  writs  for  an  innholder,  is  derived,  ab  hospitio,  and  hospes  est  quasi 
hospitium  petens. 

4.  The  words  are,  ita  quod  pro  defectu  hospitator'  seu  servientium 
suorura,  &c.,  hospitibus  hujusmodi  damn'  non  eveniat,  &c.,  by  which  it 
appears  that  the  innholder  shall  not  be  charged,  unless  there  be  a  default 
in  him  or  his  servants,  in  the  well  and  safe  keep'ing  and  custody  of  their 
guest's  goods  and  chattels  within  his  common  inn ;  for  the  innkeeper  is 
bound  in  law  to  keep  them  safe  without  any  stealing  or  purloining;  and  it 
is  no  excuse  for  the  innkeeper  to  say,  that  he  delivered  the(f)  guest  the 
key  of  the  chamber  in  which  he  is  lodged,  and  that  he  left  the  chamb^V 
door  open  ;  but  he  ought  to  keep  the  goods  and  chattels  of  his  guest  there 
in  safety  ;  and  therewith  agrees  22  Hen.  6,  21  b.  ;  11  Hen.  4,  45,  a.  b.  ; 
42  Edw.  3,  11,  a.  And  although  the  guest  doth  not  deliver  his  goods  to 
the  innholder  to  keep,  nor  acquaints  him  with  them,  yet  if  they  be  carried 
away,  or  stolen,  the  innkeeper  shall  be  charged,and  therewith  agrees  42  Edw. 
3,  1 1,  a.  And  although  they  who  stole  or  carried  away  the  goods  be  unknown, 
yet  the  innkeeper  shall  be  charged.  22  Hen.  6,  38.  8  R.  2,  Hostler,  7. 
Vide  22  Hen.  6,  21.  But  if  the  guest's  servant  or  he  who(2<)  comes  with 
him,  or  he  whom  he  desires  to  be  lodged  with  him,  steals  or  carries  away 
his  goodsj  the  innkeeper  shall  not  be  charged  ;  for  there  the  fault  is  in  the 
guest  to  have  such  companion  or  servant ;  and  the  words  of  the  writ  arc 
pro  defectu  hospitator'  seu  servientium  suorum.  Vide  22  Hen.  6,  21,  b. 
But  if  the  innkeeper  appoints  one  to  lodge  with  him,  he  shall  answer  for 
him,  as  it  there  appears.  The  innkeeper(i')  requires  his  guest  that  he  will 
put  his  goods  in  such  a  chamber  under  lock  and  key,  and  then  he  will  war- 
rant them,  otherwise  not,  the  guest  lets  them  lie  in  an  outer  court  where 
they  are  taken  away,  the  innkeeper  shall  nott  be  charged,  for  the  fault  is  in 
the  guest,  as  it  is  held,   10  Eliz.  Dyer,  266. 

5.  The  words  are,  hospitibis  damnum  non  eveniat:  these  words  are 
general,  and  yet  forasmuch  as  they  depend  on  tiie  preceding  words  they 
will  produce  two  effects,  viz.  1.  They  illustrate  the  first  words.  2.  They 
are  restrained  by  them  :  for  the  first  words  are,  eorum  bona  et  catal'  infra 
hospitia  ilia  existentia  absque  subtractione  custodire,  &c.,  which  words 
r  *5fl  1  *(bona  et  catalla)  by  the  said  Avords,  ita  quod,  &c.  hospitibus 
■-  -■  damnum  non  eveniat,  although  they  do  not  of  their  proper  nature 
extend  to(zy)  charters  and  evidences  concerning  freehold  or  inheritance, 
or(x)  obligations,  or  other  deeds  or  specialities,  being  things  in  action,  yet 
in  this  case  it  is  expounded  by  the  latter  words  to  extend  to  them  ;  for  by 

(rJ   1  Roll.  3,  4.     4  Leon.  96.     2  Brownl.  255. 

(s)   1  Roll.  3,  4.     4  Leon.  9  G.     2  Brownl.  255. 

(0  Moor .  78,  pi.  207,  158,  pi.  2:19.     2  Brownl.  255. 

(u)  Cro.  El.  285.  {v)  Moor,  158.  (t)  Vide  Salk.  18. 

(w)  2  Roll.  58.    22  E.  4.  12,  a.  b.  (x)  Dy.  5,  pi.  2.    2  Roll.  58.    Yelv.  68. 


CALYES    CASE. 


149 


them  great  damages  happen  to  the  guest ;  and  therefore,  if  one  brings  a 
bag  or  chest,  &c.,  of  evidence  into  the  inn,  or  obhgations,  deeds,  or  other 
specialties,  and  by  default  of  the  innkeeper  they  are  taken  away,  the  inn- 
keeper shall  answer  for  ihem,  and  the  writ  shall  be  bona  et  catalla  generally; 
and  the  declaration  shall  be  special.  2.  These  words,  bona  et  catalla,  restrain 
the  latter  words  to  extend  only  to  movables;  and  therefore,  by  the  latter 
words,  if  the  guest  be  beaten  in  the  inn,  the  innkeeper  shall  not  answer  for 
it;  for  the  injury  ought  to  be  done  to  his  moveables,  which  he  brings  with 
him  ;  and  by  the  words  of  the  writ,  the  innkeeper  ought  to  keep  the  goods 
and  chattels  of  his  guest,  and  not  his  person  ;  and  yet  in  such  case  of  bat- 
tery, hospiti  damnum  evenit,  but  that  is  restrained  by  the  former  words,  as 
hath  been  said.  And  these  words  aforesaid,  absque  substractione  seu  omis- 
sione,  extend  to  all  movable  goods,  although  of  them  felony  cannot  be  com- 
mitted ;  for  the  words  are  not  absque  felonica  caplione,  &c.,  but  absque 
subtractione,  which  may  extend  to  any  movables,  although  of  them(o) 
felony  cannot  be  committed,  as  of  charters,  evidences,  obligations,  deeds, 
specialties,  &c. 

[If  a  horse  is  at  livery,  and  eats  more  than  he  is  worth,  an  action  lies 
against  the  owner  ;  but  the  horse  cannot  be  used  or  sold.  Moor,  876,  877  ; 
but  by  the  custom  of  London  and  Exeter  the  horse  may  be  sold  ;  but  see 
Popham,  127,  Robinson  v.  Waller.] 


This  is  the  leading-  case  upon  the 
subject  of  the  liabilities  of  innkeepers 
in  respect  to  their  guest's  property ;  in 
a  subsequent  case,  goods  belonging  to  a 
factor  were  lost,  out  of  a  private  room 
in  the  inn,  chosen  by  tlie  factor  for  the 
purpose  of  exhibiting  them  to  his  custo- 
mers for  sale,  the  use  of  which  was 
granted  to  him  by  the  innkeeper,  who, 
at  the  same  time  told  hira  that  there 
was  a  key,  and  that  he  might  lock  the 
door,  which  the  guest  however  neglect- 
ed to  do,  although  on  two  occasions, 
while  he  was  occupied  in  showing  part 
of  the  goods  to  a  customer,  a  stranger 
had  put  his  head  into  the  room.  The 
judge,  Richards,  C.  B.,  told  the  jury, 
that  prima  facie  the  innkeeper  was  an- 
swerable for  the  goods  of  his  guest  in  his 
inn,  but  that  the  guest  might,  by  his 
r  *-i  T  °^^''^  conduct,  discharge  him 
L  J    *f,.Q(ji  responsibility,  and  left  it 

to  them  to  say  whether  he  had  done  so 
here  ;  the  jury  found  that  he  had  ;  and, 
on  a  motion  for  a  new  trial,  the  court  ap- 
proved of  the  direction  of  the  learned 
judge,  and  thought  the  verdict  was  cor- 


rect. "  The  law,"  said  Lord  Ellenbo- 
rough,  "obliges  the  innkeeper  to  keep 
the  goods  of  persons  coming  to  his  inn, 
casua  hospitandi,  safely,  so  that,  in  the 
language  of  the  writ,  pro  defectu  hospi- 
tatoris  hospitibus  damnum  non  eveniat 
ullo  modo  ....  But  there  may  no  doubt 
be  circumstances,  as  where  the  guest, 
by  his  own  misconduct,  induces  the  loss, 
which  form  an  exception  to  the  general 
liability,  as  not  coming  within  the  words 
pro  defectu  hospitatoris.  Now,  let  us 
consider,  1st,  whether  the  plaintift'came 
to  the  inn  causa  hospitandi;  and,  2ndly, 
whether  by  liis  conduct  he  did  not  in- 
duce the  loss.  It  does  not  appear  whe- 
tiier  he  had  a  sleeping  room,  but  I  think 
we  may  presume  he  had,  but  he  desires 
a  private  room  up  some  steps  in  order  to 
show  his  goods.  Now,  an  innkeeper  is 
not  bound  by  law  to  find  show-rooms  for 
his  guests,  but  only  convenient  lodging- 
rooms  and  lodging,  As  to  what  is  laid 
down  in  Calye's  case,  respecting  the  de- 
livery of  the  key  to  his  guest,  it  plainly 
relates  only  to  the  chamber-door  in 
which  he  is'lodged;  and  I  agree  that  if 


(fl)  3  Inst.  109.     10  E.  114,  a.     Fitz.  Endict.  19.     Br.  Coron,  155. 


150 


SMITH    S    LEADING    CASES. 


an  innkeeper  gives  the  key  of  the  cham- 
ber to  his  guest,  this  will  not  dispense 
with  his  own  care,  or  discharge  him 
from  his  general  responsibility  as  inn- 
keeper ....  The  cases,"  continued  his 
lordship,  "show  that  the  rule  is  not  so 
inveterate  against  the  innkeeper,  but 
that  the  guest  may  exonerate  him  by  his 
fault,  as  if  the  goods  are  carried  away 
by  the  guest's  servant,  or  the  companion 
whom  lie  brings  with  him,  for  so  it  is 
laid  down  in  Calye's  case.  Now,  what 
is  the  conduct  of  the  plaintitf  in  this 
case?  The  innkeeper  not  being  bound 
to  find  him  more  than  lodging,  and  a 
convenient  room  for  refreshment,  this 
does  not  satisfy  his  object,  but  he  in- 
quires for  a  third  r"oom,  for  the  purpose 
of  exposing  in  it  his  wares  to  view,  and 
introducing  a  number  of  persons,  over 
whom  the  innkeeper  can  have  no  check 
or  control,  and  thus  for  a  purpose  wliol- 
ly  alien  from  the  ordinary  purpose  of  an 
inn,  which  is  ad  hospitandos  homines. 
Therefore,  the  care  of  tliese  goods  hard- 
ly falls  within  the  limits  of  the  defend- 
ant's duty  as  innkeeper.  Besides,  after 
the  circumstances  relating  to  the  stran- 
ger took  place,  which  might  well  have 
awakened  the  plaintiff's  suspicion,  it 
became  his  duty,  in  whatever  room  lie 
might  be,  to  use,  at  least,  ordinary  dili- 
gence ;  atid  particularly  so,  as  he  was 
occupying  the  chamber  for  a  special 
purpose  ;  for,  though,  in  general,  a  tra- 
veller who  resorts  to  an  inn  may  rest 
on  the  protection  which  the  law  casts 
around  him,  yet,  if  circumstances  of 
suspicion  arise,  he  must  exercise  ordi- 
nary care.  It  seems  to  me  that  the' 
room  was  not  merely  entrusted  to  the 
plaintiff  in  the  ordinary  character  of  a 
guest  frequenting  an  inn,  but  that  he 
must  be  understood  as  having  taken  a 
special  charge  of  it,  and  that  he  was 
bound  to  exercise  ordinary  care  in  the 
safe  keeping  of  his  goods,  and  it  is  owing 
to  his  neglect,  and  not  to  the  fault  of  the 
innkeeper,  that  the  accident  happened  : 
and  this  was  a  question  proper  to  leave 
to  the  jury."  Burgess  v.  Clements,  4 
M.  &  !S.  306,  accord.  Farnworth  v. 
Packwood,  1  Stark.  249.  But  in  ano- 
ther case,  where  a  traveller  went  to  an 
inn  with  several  packages,  one  of  which 
was,  by  his  desire,  taken  into  the  com- 
mercial room,  into  which  he  was  shown, 
and  the  others  into  his  bed-room,  which, 
according  to  the  usual  practice  of  that 
inn,  was  the  place  to  which  goods  were 
taken,  unless  orders  were  given  to  the 


contrary,  and  the  package  taken  into 
the  commercial  room  was  stolen,  the 
innkeeper  was  held  responsible,  and 
Holroyd,  J.,  distinguished  the  case  from 
Burgess  v.  Clements,  by  saying,  that 
there  the  plaintiff  asked  to  have  a  room 
which  he  used  for  tlie  purposes  of  trade, 
not  merely  as  a  guest  in  the  inn.  Rich- 
mond v.  Smith,  8  B.  &  C.  9.  So  in  Kent 
V.  Shuckard,  2  B.  &  Ad.  803,  the  plain- 
tiff and  his  wife,  with  Miss.  S.,  arrived 
at  the  defendant's  inn,  and  took  a  sit- 
ting room  and  two  bed-rooms  so  situated 
that,  the  door  of  the  sitting-room  being 
open,  a  person  could  see  the  entrances 
into  both  bed-rooms.  On  the  following 
day  the  plaintiff's  wife  went  into  the  bed 
room,  and  laid  on  the  bed  a  reticule, 
which  contained  money,  and  returned 
into  the  sitting-room,  *\ea.\''mg  r  ^-^-i 
the  door  between  that  and  the  "-  ^ 
bed-room  open.  About  five  minutes  af- 
terwards slie  sent  Miss  S.  for  the  reti- 
cule, which  was  not  to  be  found.  The 
innkeeper  was  held  responsible  for  it, 
and  it  was  held  that  there  was  no  dis- 
tinction between  money  and  goods  as  to 
the  liability  of  innkeepers.  So  when  the 
plaintiff  drove  his  gig  to  the  defendant's 
inn  on  Bewdley  fair-day,  and  asked  whe- 
ther there  was  room  for  the  horse,  the 
hostler  of  the  defendant  took  the  horse 
out  of  the  gig  and  put  him  into  a  stable, 
and  the  plaintiff  carried  his  coat  and 
whip  from  the  gig  into  the  house  and 
took  some  refreshment  there;  the  hostler 
placed  the  gig  outside  of  the  inn-yard, 
in  a  part  of  the  open  street  in  which  the 
defendant  was  in  the  habit  of  placing 
the  carriages  of  his  guests  on  fair-days. 
The  gig  was  stolen  thence  ;  and  the 
court  held  the  innkeeper  responsible, 
for  it  did  not  appear  that  the  defendant 
put  the  gig  in  the  street  at  the  request 
or  instance  of  the  plaintiff;  the  place 
was,  therefore,  a  part  of  the  inn,  for  the 
defendant,  by  his  conduct,  treated  it  as 
such.  If  he  wished  to  protect  himself, 
he  should  have  told  the  plaintiff  that  he 
had  no  room  in  his  yard,  and  that  he 
would  put  the  gig  in  the  street,  but 
could  not  be  answerable  for  it.  Jones  v. 
Tyler,  Ad.  &,  El.  522.  [In  Dawson  v. 
Chamney,  5  Q.  B.  164,  it  was  held  that 
in  action  against  an  innkeeper  for  neg- 
ligence by  which  a  horse  of  the  plaintiff, 
infra  hospltium,  had  been  injured,  there 
was  a  sufficient  presumption  of  negli- 
gence, to  let  the  case  go  to  the  jury,  but 
that  proof  on  the  part  of  the  defendant 
of  such  attention  and  skilful  manage- 


CROGATES     CASE. 


Id  I 


ment  as  satisfied  the  jury  that  the 
damage  could  not  be  occasioned  by  the 
negligence  imputed,  took  away  the 
ground  of  action.] 

It  is  not  necessary,  in  order  that  a 
man  may  be  a  guest,  so  as  to  fix  the 
innkeeper  with  this  sort  of  liability,  that 
he  should  have  come  for  more  than  a 
temporary  refreshment ;  Bennett  v.  Mel- 
lor,  5  T.  R.  273 ;  and  in  York  v.  Grind- 
stone, 1  Sal.  388,  2  Lord  Raym.  860, 
three  judges  held,  against  Lord  Holt's 
opinion,  that  if  a  traveller  leave  his 
horse  at  an  inn,  and  lodge  elsewhere,  he 
is,  for  the  purpose  of  this  rule,  to  be 
deemed  a  guest;  "  because,"  said  they, 
"it  must  be  fed,  by  which  the  inkeeper 
hath  gain  ;■  otherwise  if  he  had  left  a 
dead  thing."  But  it  is  clear  that  if  the 
innkeeper  receive  goods  as  a  bailee, 
and  not  in  the  character  of  an  innkeep- 
er, they  do  not  fall  within  it.     Hyde  v. 


Mersey  and  Trent  Navigation  Compa- 
ny, 5  T.  R.  389;  Jelly  v.  Clarke,  Cro. 
Jac.  138;  Bac.  Abr.  Inns,  C.  5.  Wil- 
liams v.  Gesso,  3  Bingh.  N.  C.  849. 
The  length  of  time  for  which  the  guest 
has  resided,  seems  not  to  affect  his  right 
as  such,  provided  he  live  there  in  the 
transitory  condition  of  a  guest.  But  if 
he  came  on  a  special  contract  to  board 
and  lodge  there,  the  law  does  not  consi- 
der him  a  guest,  but  a  boarder.  Bac. 
Abr.  Inns.  C.  5 ;  Parkhurst  v.  Foster, 
Sal.  388. 

The  definition  of  an  inn  is,  "  a  house 
where  the  traveller  is  furnished  with 
every  thing  he  lias  occasion  for  while- 
on  his  way."  Tiiompson  v.  Lacy,  3  B. 
&  A.  283.  See  Bac.  Abr.  Inns,  B. ;  but 
a  mere  coffee-house  is  not  an  inn,  at 
least  not  within  the  meaning  of  a  fire 
policy.     Doe  v.  Laming,  4  Camp.  77. 


For  references  to  the  American  decisions,  see  the  note  to  Coggs  v.  Ber- 
nard, (infra.) 


*CRO  GATE'S     CASE 


[*o3] 


MICH.— 6  JACOB!  1. 

[reported,  8  COKE,  66.] 

Replication  De  Injuria  when  allowable. 

Edward  Crogate  brought  an  action  of  trespass  against  Robert  Mar3's, 
for  driving  his  cattle  in  Town-Barningham  in  Norfolk,  &c.(a)  The  defen- 
dant pleaded,  that  a  house  and  two  acres  in  Bassingham  in  the  said  county, 
were  parcel  of  the  manor  of  Thurgarton  in  the  same  county,  and  demised 
and  deiTiisable,  &c.  by  copy,  &c.  in  fee  simple,  &c.  according  to  the 
custom  of  the  manor,  of  which  manor  William  late  Bishop  of  Norwich  was 
seised  in  fee  in  the  right  of  his  bishoprick,  and  prescribed  to  have  common  of 
pasture  for  him  and  his  customary  tenants  of  the  said  house  and  two  acres 
of  land  in  magna  pecia  pasturae  vocal'  Bassingham  common,  pro  omnibus 


(a)  Doct.  pi.  114.  See  2  Salk.  628.  1  Ld.  Raym.  700.  12  Mod.  580.  Comyn,  582, 
583,  pi.  254.  2  Lutw.  1347.  1350.  7  Viner,  503.  2  Saund.  295.  3  Lev.  65.  Hard.  6, 
and  6  E.  4.  6.  a. 


152  smith's  leading  cases. 

averiis,  &c.  omni  tempore  anni,  and  the  said  bishop  at  such  a  court,  &c. 
granted  the  said  house  and  two  acres  by  copy  to  one  William  Marys,  to- 
him  and  his  heirs,  &c.     And  the  plaintiff'  put  his  said  cattle  in  the  said 
great  piece   of  pasture,  wherefore   the   defendant,  as  servant  to  the   said 
William,  and  by  his  commandment,  molliter  drove  the  said  cattle  out  of  the 
said  place,  where  the  said  AVilliam  had  common  in  prted'  villam  de  Town- 
Barningham,  adjoining   to  the  said  common  of  Bassingham,  &c.      The 
plaintiff" replied,  de  injuria  sua  propria  absque  tali  causa  :  upon  which  the 
defendant  demurred  in  law.     And  it  was  objected  on  the  plaintiff^'s  part, 
that  the  said  replication  was  good,  because  the  defendant  doth  not  claim  any 
interest,  but  justified  by  force  of  a  commandment;  to  which  de  injuria  sua 
propria  absque  tali  causa,  may  be  fitly  applied  :  and  this  plea,  De  injuria 
sua  propria,  shall  refer  only  to  the  commandment,  and  to  no  other  part  of 
r  *^il  ^^^^  plea,  and  they  *ciled  the  books  in  10  H.  3,  3.  a.  b.  9.  a.     16 
L         J  H.  7,  3.  a.  b.,  &c.     3  H.  6,  35.  a.     19  H.  6,  7.  a.  b.,  &c.     But 
it  was  adjudged  that  the  replication  was  insufficient.     And  in  this  case 
divers  points  were  resolved.     1.  That  absque  tali  causa,  doth  refer  to  the(^) 
whole  plea,  and  not  only  to  the  commandment,  for  all  maketh  but  one  cause, 
and  any  of  them  without  the  other,  is  no  plea  by  itself.    And  therefore  in(c) 
false  imprisonment,  if  the  defendant  justifies  by  a  capias  to  the  sheriff^  and 
a  warrant  to  him,  there,  de  injuria  sua  propria  generally  is  no  good  replica- 
tion, for  then  the  matter  of  record  will  be  parcel  of  the  cause  (for  all  makes 
but  one  cause,)  and  matter  of((Z]  record  ought  to  be   put  in   issue  to  the 
common  people,  but  in. such  case  he  may  reply,  de  injuria  sua  propria,  and 
traverse  the  warrant,  which  is  matter  in  fact.(e)     But  upon  such  a  justifi- 
cation by  force  of  any  proceeding  in  the  Admiral  Court,  hundred  or  county, 
&c.,  or  any  other  which  is  not  a  court  of  record,  there  de  injuria  sua  propria 
generally  is  good,  for  all  is  matter  of  fact,  and  all  makes  but  one  cause. 
And  by  these  differences  you  will  agree  your  books  in  2  H.  7,  3.  b.     5  H. 
7.  6.  a.  b.      16  H.  7.  3.  a.      21  H.  7.  22.  a.  (33).      19  H.  6.  7.  a.  b.     41 
E.  3.  29  b.     17  E.  3.  44.     18  E.  3.  10,  b.     2  E.  4.  6.  b.     12  E.  4.  19.  b. 
14  H.  6.  16.     21  H.  6.  5.  a.  b.      13  R.  2.     Issue  163. 

2.  It  was  resolved,  that  when  the  defendant  in  his  own  right,  or  as  a 
servant  to  another,  claims  any(/)  interest  in  the  land,  or  any  common,  or 
rent  going  out  of  the  land  ;  or  any(o-)  way  or  passage  upon  the  land,  &c. 
there  de  injuria  sua  propria  generally  is  no  plea. (A)  But  if  the  defendant 
justifies  as  servant,  there  de  injuria  sua  propria  in  some  of  the  said  cases, 
with  a  traverse  of  the  commandment,  that  being  made  material,  is  good ; 
and  so  you  will  agree  all  your  books,  scil.  14  H.  4.  32.  33  H.  6.  5.  44 
E.  3.  18.  2H.5.  1.  lOH.  6.  3.  9.  39  H.  6.  32.  9  E.  4.  22.  16  E. 
4.  4.  21  E.  4.  6.  28  E.  3.  98.  28  H.  6.  9.  21  E.  3.  41.  22  Ass.  42. 
44  E.  3.  13.  45  E.  3.  7.  24  E.  3.  72.  22  Ass.  85.  33  H.  6.  29.  42 
E.  3.  2.  For  the  general  plea  de  injuria  sua  propria,  &c.  is  properly  when 
the  defendant's  plea  doth  consist  merely  upon  matter  of(j)  excuse,  and  of 
no  matter  of  interest  whatsoever ;  et  dicitur  de  injuria  sua  propria,  &c., 

(6)  Cr.  Jac.  599.     2  Leon.  81.     2  Sand.  295.     Doct.  pi.  114.     3  Bulst.  285.     Cr.  Car. 
138.  (c)  Doct.  pi.  114.     2  Leon.  81.     2  E.  4.  4>.  b. 

(rf)4Co.71.b,     9  Co.  25.  a.     Co.  Lit.  260.  a.  (e)  Doct.  pi  1 1 4 

(/)  Doct.  pi.  114.     Cr.  Eliz.  539,  540.     Cr.  Jac.  225.     Yelv.  157.     1  Brovvn'l.  215. 
(^)  Cro.  Jac.  599.  (A)  Doct.  pi.  114.  g.  (i)  Doct.pl.  115. 


CROGATES    CASE. 


153 


because  the  injury  properly  in  this  sense  is  to  the  person,  or  to(/f)  the  repu- 
tation, as  battery  or  imprisonment  *to  the  person  ;  or  scandal  to  the  r  ^-r  -i 
reputation  ;  there  if  the  defendant  excuse  himself  upon  his  own  L  -^ 
assault,  or  upon  hue  or  cry  levied,  there,  properly(/)  de  injuria  sua  propria 
generally  is  a  good  plea,  for  there  the  defendant's  plea  consists  only  upon 
matter  of  excuse.  3.  It  was  resolved,  that,(m)  when  by  the  defendant's 
plea  any  authority  or  power  is  mediately  or  immediately  derived  from  the 
plaintiff,  there,  akhough  no  interest  be  claimed  the  plaintiff  ought  to  answer 
it,  and  shall  not  reply  generally  de  injuria  sua  propria.  The  same  law  of 
an(rt)  authority  given  by  the  law  ;  as  to  view  waste,  &c.  Vide  12  Ed.  4. 
10.     9  Ed.  4.  31.     20  Ed.  4.  4.     42  Edw.  3.  2.      16  H.  7.  3. 

Lastly,  it  was  resolved,  that  in  the  case  at  bar,  the  issue  would  be  full  of 
multiplicity  of  matter,  where  an  issue  ought  to  be  full  and  single  :  for  parcel 
of  the  manor,  demisable  by  copy,  grant  by  copy,  prescription  of  common, 
&c.,  and  commandment,  would  be  all  parcel  of  the  issue.  And  so,  by  the 
rule  of  the  whole  court,  judgment  was  given  against  the  plaintiff. 


"  From  the  time  of  Crogate's  case 
down  to  the  present  day,  the  resolutions 
of  the  court  made  in  that  case  have  as  to 
the  greater  part  been  considered  law." 
Per  Tindal,  C.  J.,  Bardons  v.  Selby,  3 
Tyrwh.  435.  See  White  v.  Stubbs,  2 
Wms.  Saiind.  293,  b,  and  the  notes ; 
Cockerel  v.  Armstrong,  B.  N.  P..  93, 
Willes,  99  ;  Jones  v.  Kitchin,  1  B.  &  P. 
76  ;  Lang-ford  v.  Waghorn,  7  Price,  670; 
Cooper  v.  Monke,  Willes,  .52 ;  Bell  v. 
Warden,  Willes,  202 ;  Hooker  v.  Nye, 
4  Tyrwh.  777.  See  also  the  notes  to 
Craft  V.  Boite,  1  Wms.  Satind.  244,  c.  ; 
Com.  Dig.  Pleader,  F.  18 ;  3  M.  29.  It 
is  unnecessary  to  do  more  hero  than 
refer  to  the  above  cases,  because  they 
are  fully  canvassed  and  explained,  and 
the  nature  and  applicability  of  this  repli- 
cation settled,  in  the  cases  of  Selby  v. 
Bardons,  3  B.  &  Ad.  1  ;  affirmed  in 
error,  3  Tyrwh.  431  ;  Pigot  v.  Kemp,  3 
Tyrwh.  128,  and  Hooker  v.  Nye,  4 
Tyrwh.  177.  In  Selby  v.  Bardons,  the 
declaration  was  in  replevin  for  goods 
and  chattels.  Avowry,  that  the  plaintiff 
was  an  inhabitant  of  that  part  of  St. 
Andrevv''s,  Holborn,  which  is  above  the 
bars,  and  occupier  of  a  tenement  in  the 
parish  of  St.  George  the  Martyr  ;  that  a 
rate  was  duly  made  and  published  for 
those  districts,  in  which  the  plaintiff  was 
rated  at  71.,  of  which  the  defendant,  who 
was   collector,   gave    him   notice,   and 

(A-)  Doct.  pi.  ]  15.     Cr.  Eliz.  607. 
Cm)  Doct.  pi.  115.     Cro.  Car,  164. 


demanded  payment,  which  being  refus- 
ed, he  summoned  him  before  two  jus- 
tices, where  he  appeared,  but  showing 
no  cause  for  his  refusal,  the  justices  made 
their  warrant  to  defendant  to  distrain, 
under  which  he  and  the  other  defendant, 
as  his  bailiff,  took  the  goods  and  chattels 
in  the  declaration  mentioned  as  a  dis- 
tress. Plea  in  bar,  de  injuria  sua  pro- 
pria absque  tali  causa,  and  to  this  a 
demurrer.  There  were  other  pleas  in 
bar  to  the  same  effect,  and  demurred  to. 
Upon  argument  the  plea  was  held  good. 
Patleson,  J.,  remarked,  that,  if  bad,  it 
must  be  so  either  because  the  avowry 
claimed  some  interest,  or  because  the 
defendant  justified  under  authority  in 
law  within  the  third  resolution  in  Cro- 
gate's case,  or  for  multiplicity. 

"  In  the  first  place,"  said  his  lordship, 
"as  to  any  claim  of  interest,  it  is  plain 
that  the  avowries  claim  no  interest  wliat- 
ever  in  the  land,  the  sort  of  interest  to 
which  *the  second  resolution  r  ^^p  -, 
is  in  words  confined.  But  sup-  ^  -I 
posing  any  interest  in  goods  were 
within  the  spirit  of  that  resolution,  still 
I  apprehend  that  it  must  be  an  interest 
existing  antecedent  to  the  seizure  com- 
plained of,  and  not  one  which  arises 
merely  out  of  that  seizure,  otherwise 
this  plea  never  could  be  good  in  replevin, 
when  a  return  of  goods  is  claimed,  and 
of  course  an  interest  in  them  is  asserted. 


(0  Doct.  pi.  115. 
(n)  Doct.  pi.  115. 


154 


SMITHS     LEADING     CASES. 


.  .  .  As,  therefore,  the  avowries  in 
this  case  show  no  interest  in  lands  or  in 
the  goods  seized,  except  tliat  which 
arises  from  claiming  a  return ;  and  as  I 
find  no  authority  for  saying  that  such 
claim  of  return  is  an  interest  within  the 
second  resolution  in  Crogate's  case  ;  it 
seems  to  me  that  the  avowries  show 
matter  of  excuse  only,  and  that  as  to  this 
ground  of  objection,  the  general  pleas  in 
bar  of  de  injuria  are  good. 

"  In  the  next  place — Are  the  general 
pleas  bad,  on  account  of  any  authority 
in  law  shown  by  the  avowries  ! 

"It  is  certainly  stated  in  the  third 
resolution  in  Crogate's  case,  that  the 
replication  de  injuria  is  bad  where  the 
plea  justifies  under  an  authority  in  law  : 
but  this,  if  taken  in  the  full  extent  of  the 
term  used,  is  quite  inconsistent  with  part 
of  the  first  resolution,  which  states,  that 
where  the  plea  justifies  under  the  pro- 
ceedings of  a  court  not  of  record,  the 
general  replication  may  be  used,  or 
where  it  justifies  under  a  capias  and 
warrant  of  sheriff",  all  may  be  traversed 
except  the  capias,  which  cannot,  because 
it  is  matter  of  record,  and  cannot  be  tried 
by  a  jury.  Now  the  proceedings  of  a 
court  not  of  record,  and  the  warrant  of  a 
sherift'and  seizure  under  it,  are  siirely 
as  complete  authorities  in  law  as  any 
authority  disclosed  by  the  present  avow- 
ries. With  respect  to  the  proceedings 
of  a  court  not  of  record,  a  quEere  is  made, 
in  Lane  v.  Robinson,  whether  a  replica- 
tion de  injuria  would  be  good  ;  but  the 
point  did  not  arise  in  the  case,  and  the 
year-books  referred  to  in  Crogate's  case 
warrant  the  conclusion  that  it  would. 
In  Bro.  Ab.  title  de  son  tort  demesne, 
there  are  instances  of  this  replication  to 
a  plea  justifying  by  authority  of  law. 
There  is  also  the  case  referred  to  in  the 
argument  at  the  bar  of  Chancey  v.  Win 
and  others,  12  Mod.  102,  in  which  it  is 
laid  down  by  Lord  Holt  that  de  injuria 
is  a  good  replication  in  many  cases, 
where  the  plea  justifies  under  an  autho- 
rity in  law.  I  do  not  therefore  think 
that  the  present  pleas  are  objectionable 
on  that  ground. 

"  In  the  last  place — Are  the  pleas  bad 
on  account  of  the  issue  tendered  by  them 
being  multifarious  1 

"  If  this  were  res  Integra,  I  should 
have  no  hesitation  in  Irolding  that  they 
were  bad  ;  and  it  cannot,  1  think,  be 
denied  that  the  present  issues  are  as  full 
of  multiplicity  as  that  in  Crogate's  case, 
and  to  which  the  fourth  resolution  there 


applied.  But  I  am  unable  to  find  any 
instance  in  which  this  general  replica- 
tion has  been  held  bad   on  that  ground. 

The  cases  of  Robinson  v. 

Raley,  1  Burr.  316,  and  O'Brian  v. 
Saxon,  2  B.  &  C.  908,  are  authorities  to 
show  that  it  cannot  be  objected  to  on 
that  account,  provided  the  several  facts 
so  put  in  issue  constitute  one  cause  of 
defence,  which,  as  it  seems  to  me,  they 
always  will,  where  the  plea  is  properly 
pleaded,  however  numerous  they  may 
be,  since,  if  they  constitute  more  than 
one  cause,  the  plea  will  be  double.  The 
present  avowries  state  many  facts,  un- 
doubtedly, but  they  are  all  necessary  to 
the  defence,  and,  combined  together, 
they  show  but  one  cause  of  defence, 
namely,  that  the  plaintiff''s  goods  were 
rightfully  taken  under  a  distress  for 
poor  rates ;  and  if  the  general  replica- 
tion be  held  bad  in  this  case,  I  am  at  a 
loss  to  see  in  what  case  such  a  replica- 
tion can  be  held  good  where  it  puts  more 
than  one  fact  in  issue.  I  am  compelled, 
therefore,  however  reluctantly,  to  come 
to  the  conclusion  that  the  pleas  in  bar 
are  good."  See  also  the  judgment  of 
L.  C.  J.  Tindal  in  the  court  above,  3 
Tyrwh.  431. 

In  Pigott  v.  Kemp,  3  Tyrwh.  128,  in 
trespass  for  assault  and  battery,  the  plea 
alleged  that  J.  E.  and  S.  B.  were  pos- 
sessed of  a  dwelling-house  and  close, 
and  being  so  possessed,  the  plaintilf  was 
wrongfully  there  making  a  noise,  &c., 
and  that  the  defendants,  as  the  servants 
of  J.  E.  and  S.  B.,  and  by  their  com- 
mand, requested  him  to  depart,  which 
he  refused,  whereupon  the  defendants, 
as  such  servants,  *gent!y  laid  r^,t^-r-] 
their  hands  upon  him,  &c.,  and  '-  ^ 
because  he  was  armed  with  pistols,  and 
assaulted  them,  they,  as  such  servants, 
necessarily  a  little  laid  hold  of  him  and 
hurt  him.  Quae  sant  eadem,  &c.  Re- 
plication, de  injuria  sua  propria  absque 
tali  causa.  Upon  demurrer,  it  was  con- 
tended with  great  learning  by  Mr.  Byles, 
on  the  part  of  the  defendant,  that  the 
autliorities  showed  that  command  derived 
from  another  could  not  be  traversed  in 
this  form  of  replication.  However,  the 
court  expressed  so  strong  an  opinion 
that  the  rule  which  forbids  the  traverse 
of  an  authority  in  this  form  related  only 
to  authorities  derived  mediately  or  im- 
mediately from  the  plaintift'himself,  that 
the  learned  counsel  elected  to  amend. 

Upon  the  whole,  the  exceptions  sub- 
ject to  which  the  general  replication  is 


CROGATES     CASE. 


155 


admissible,  may  be  reduced  to  the  fol- 
lowing four : — • 

1.  When  matter  of  record  is  parcel 
of  the  issue  ;  and  that  for  the  obvious 
reason,  that  if  it  were  permitted  it  would 
lead  to  a  wrong  mode  of  trial. 

2.  When  the  defendant  derives  any 
authority  mediately  or  immediately  from 
the  plaintiff. 

3.  When  the  defendant,  in  his  own 
right,  or  as  servant  to  another,  claims 
any  interest :  for  de  injuria,  says  Lord 
Coke,  is  properly  when  the  defendant's 
plea  doth  consist  merely  upon  matter  of 
excuse,  and  of  no  matter  of  interest 
whatever.  "By  this,"  says  Mr.  Justice 
Parke,  in  Selby  v.  Bardons,  "  I  under- 
stand him  to  mean,  an  interest  in  the 
realty,  (see  Vivian  v.  Jenkins,  3  A.  & 
E.  741,)  or  an  interest  in,  or  title  to, 
chattels,  averred  in  the  plea,  and  exist- 
ing prior  to,  and  independently  of,  the 
act  complained  of,  which  interest  or 
title  would  be  in  issue  on  the  general 
replication ;  and  I  take  the  principle  of 
the  rule  to  be,  that  such  alleged  interest 
or  title  shall  be  specially  traversed,  and 
not  involved  in  a  general  issue." 

4.  Where  the  plea  is  not  in  excuse 
of  the  injury  contained  in  the  declara- 
tion ;  as,  for  instance,  if  it  were  a  plea 
of  release,  or  of  accord  and  satisfaction,  or 
in  denial.  See  Crisp  v.  Griffiths,  comment- 
ed on  in  the  latter  part  of  this  note,  Whit- 
taker  V.  Mason,  and  the  principal  case. 

Hitherto  our  observations  on  this  tra- 
verse have  been  confined  to  its  applica- 
bility in  actions  of  tort.  But  the  rules 
of  court  made  in  Hilary  Term,  1834, 
under  the  power  given  to  the  judges 
by  Stat.  3  &  4  W.  4,  c.  42,  have  very 
much  increased  the  importance  of  de 
injuria,  by  rendering  it  often  desirable 
to  apply  it  to  actions  of  contract.  Be- 
fore the  above-mentioned  rules,  there 
were  seldom  any  special  pleas  in  actions 
upon  contract,  on  account  of  the  com- 
prehensive nature  of  the  general  issues 
non  assumpsit  and  nil  debet.  As  soon, 
however,  as  the  extent  of  general  issues 
was  confiaed,  and  special  pleas  began 
to  be  of  every-day  occurrence  in  as- 
sumpsit, it  became  desirable,  that  the 
plaintiff,  who  has  but  one  replication, 
should  be  enabled  to  put  in  issue  seve- 
ral of  the  nuuierous  allegations  which 
the  special  pleas  were  found  to  contain  ; 
otherwise  he  would  have  laboured  un- 
der the  hardsiiip  of  being  frequently 
compelled  to  admit  the  greater  part  of 
an  entirely  fal.se  story.   It  became  there- 


fore important  to  ascertain  whether  de 
injuria  could  not  be  replied  in  cases  of 
this  description,  and  the  question  of  its 
applicability  frequently  came  before  the 
courts.  Tlius,  in  Crisp  v.  Griffiths,  3 
Dowl.  752,  5  Tyrrwh.  619,  to  debt  on  a 
promissory  note  for  121.  by  the  payee 
against  the  maker,  the  defendant  plead- 
ed that,  after  the  making  of  the  note, 
the  plaintiff  drew  a  bill  for  2dI.  on  the 
defendant,  who  accepted  it,  and  the 
plaintiff  took  it  on  account  of  the  prom- 
issory note,  and  afterwards  indorsed  it 
to  a  third  person  who  was  still  entitled 
to  sue  thereon.  Replication,  de  injuria, 
and  demurrer.  The  court  seemed  strong- 
ly of  opinion  that  the  plea  and  replica- 
tion were  botli  bad,  and  offered  the  par- 
ties leave  to  amend,  which  was  accept- 
ed ;  the  Lord  C.  B.  remarking  on  this 
case,  in  Isaac  v.  Farrar,  3  C.  M.  &  R. 
68,  puts  the  opinion  of  the  court  as  to 
the  badness  of  the  replication,  on  the 
ground,  that  the  plea  was  not  in  excuse 
for  the  breach  of  promise,  but  of  satis- 
faction for  it.  Noel  v.  Rich,  4  Dowl. 
228,  5  Tyrwh.  632,  was  assumpsit  on 
a  bill  by  the  endorsee  against  the  draw- 
er, who  was  stated  to  have  indorsed  to 
Newton,  who  indorsed  to  Lewis,  who 
indorsed  to  plaintiff.  Plea,  that  the  de- 
fendant's indorsement  was  in  blank,  that 
the  defendant  delivered  the  bill,  not  to 
Newton,  but  to  Lewis  Levy,  to  be 
^discounted  for   the   defendant's 


own  benefit ;  that  Lewis  Levy, 


[*58] 


in  violation  of  good  faith,  gave  it  to 
Lawrence  Levy,  on  other  terms  and 
without  discounting  it;  and  that  New- 
ton, Lewis,  and  the  plaintiff,  before  and 
at  the  times  when  it  was  respectively 
indorsed  to  them,  had  notice  of  the  pre- 
mises ;  replication,  de  injuria.  The 
court  held  the  plea  bad  for  not  averring 
that  the  defendant  never  received  any 
consideration  for  the  bill.  They  also 
held  the  replication  good  in  substance, 
but  said,  that  whether  it  was  right  in 
point  of  form  was  a  different  question. 
However,  in  Griffin  v.  Yates,  2  Bing. 
N.  C.  579,  4  Dowl.  647,  an  opinion  waa 
expressed  by  the  Court  of  Common 
Pleas  on  the  point  of  form.  The  decla- 
ration, which  was  in  assumpsit,  stated 
that  W.  Lambert  drew  on  the  defend- 
ant, who  accepted,  and  that  W.  L.  then 
indorsed  to  plaintiff,  who  now  sued  tlie 
defendant  as  acceptor.  Plea,  that  the 
defendant  accepted  for  the  accommoda- 
tion of  the  said  W.  Lambert ;  that  no 
consideration  was  ever  given  for  the  ac- 


156 


SMITHS    LEADING    CASES. 


ceptance ;  and  that  W.  Lambert  indorsed 
it  after  it  became  due  for  the  accom- 
modation of  tiie  plaintiff,  and  without 
consideration  for  his  indorsement.  Rep- 
lication, that  the  defendant  did  not  ac- 
cept the  said  bill  for  the  accommodation 
of  W.  Lambert,  and  without  any  con- 
sideration being  given  for  the  accept- 
ance ;  and  that  W.  Lambert  did  not  in- 
dorse it,  after  it  became  due,  for  the 
plaintiff's  accommodation,  without  any 
consideration  for  his  indorsement.  De- 
murrer, assigning  special  cause,  viz. 
duplicity  and  multifariousness.  After 
argument,  curia  advisari  vult.  On  an- 
other day,  Tindal,  C.  J.,  after  stating 
the  pleadings,  said,  "  We  thought,  at 
the  time  of  the  argument,  that  there 
might  be  some  way  of  putting  in  issue 
by  the  replication  all  the  facts  alleged 
in  the  plea,  and  we  now  find  that  this 
has  been  decided  by  the  Court  of  Ex- 
chequer. But  as  it  has  been  hitherto 
doubted,  whether  this  could  properly  be 
done,  under  the  new  rules,  by  a  repli- 
cation of  de  injuria,  the  plaintiff  may 
have  leave  to  amend." 

Stephen,  Serjeant.  The  result  is,  that 
de  injuria  may  be  replied  in  assumpsit. 

Tindal,  C.  J.  It  may,  where  the 
plea  consists  of  matter  of  excuse. 

Bosanquet,  J.  Tliat  is,  subject  to  the 
same  rules  as  in  Crogate's  case. 

This  last  observation  of  Mr.  J.  Bosan- 
<juet  is  exmplified  by  the  case  of  Solly 
V.  Neish,  4  Dowl.  248,  5  Tyr.  625.  The 
declaration  was  for  money  had  and  re- 
ceived. Plea,  That  the  money  was  the 
proceeds  of  goods  consigned  to  the  de- 
fendant for  sale  by  P.  and  C,  as  their 
own  goods  and  chattels,  v.nlh  the  know- 
ledge and  consent  of  plaintiff,  (but 
which  were  in  fact  the  goods  and  chat- 
tels of  P.  and  C,  and  of  the  plaintiff, 
jointly,)  on  the  terms  of  the  said  goods 
and  chattels  being  a  security  for  any 
money  the  defendant  might  advance  to 
Messrs.  P.  and  C,  with  a  power  of  sale; 
and  that  the  defendant,  believing  the 
goods  to  belong  to  P.  and  C,  and  not 
knowing  the  plaintiff  to  be  interested 
therein,  advanced  6,00l)Z.  on  the  secu- 
rity of  the  goods,  to  P.  and  C. ;  and  af- 
terwards sold  them,  in  pursuance  of  the 
power  of  sale  ;  and  received  the  money 
mentioned  in  the  declaration  for  them  ; 
against  whicii,  the  defendant  averred, 
he  was  willing  to  set  off  the  money  still 
due  to  him  on  account  of  advances, 
which  exceeded  the  money  mentioned 
in  the  declaration.     Rejjlication,  de  in- 


juria, with  a  new  assignment.  Demur- 
rer. The  court  thought  the  replication 
bad,  because  the  plea  did  not  contain 
matter  of  excuse,  but  facts  amounting 
to  an  argumentative  denial  of  the  pro- 
mise; so  that  the  replication,  which  as- 
sumed that  a  breach  of  promise  had 
taken  place,  but  stated  it  to  have  taken 
place  toithout  the  c«Hsealleged  by  the  de- 
fendant, was  not  a  traverse  to  tlie  plea, 
which  stated  no  cause  of  the  breach,  but 
denied  the  promise,  and  of  course  the 
breach,  altogether.  The  replication, 
therefore,  neither  traversed  the  plea  iior 
confessed  it.  "  Secondly,"  said  Lord 
Abinger,  delivering  the  judgment  of  the 
court,  "it  would  be  bad  if  the  principles 
of  pleading  in  trespass,  as  contained  in 
Crogate's  case  and  other  authorrties, 
are  applied  to  an  action  of  assumpsit: 
for  the  defendant  claims  an  interest  in 
the  money,  and  he  claims  a  right  to  re- 
tain it  by  and  in  consequence  of  an 
authority  given  by  the  plaintiff,  in 
either  of  which  cases  the  general  repli- 
cation is  not  allowed."  In  Jones  v. 
Senior,  4  M,  &  W.  123,  the  replication 
de  injuria  was  held  bad,  where  the  plea 
was  not  by  way  of  excuse,  but  of  dis- 
charge. In  VVhittaker  v.  Mason,  2 
Bingh.  N.  C.  359,  a  replication  de  inju- 
ria to  a  plea  to  a  *declara-  r  ^-q  -, 
tion  in  assumpsit,  was  held  bad,  ^  ^ 
because  the  plea  was  not  in  excuse 
for  not  performing  the  contract  stated 
in  the  declaration,  but  amounted  to  a 
denial  thereof.  S.  P.  [EUworth  v. 
Pickford,  7  M.  &  W.  314,]  Elwell  v.  G.  J. 
Railway,  5  M.  &  VV.  669 ;  Parker  v. 
Riley,  3  Mee.  &  Welsh.  230,  6  Dowl. 
379 ;  in  that  case  the  court  hinted  that 
de  injuria  would  probably  be  inadmissi- 
ble, where  the  plea  showed  the  contract 
to  be  void  ab  initio  for  illegality.  Vide 
tamen  Curtis  v.  M.  of  Headford  6  Dowl. 
502.  The  case  in  the  Exchequer  al- 
luded to  by  Tindal,  C.  J.,  in  which  de 
injuria  was  decided  to  be  a  good  repli- 
cation in  assumpsit,  was  Isaac  v.  Far- 
rar,  since  reported,  3  C.  M.  &  Rose.  65. 
Assumpsit  on  a  note  indorsed  by  payee 
toR.  H.,  and  by  him  to  plaintiff.  Plea, 
that,  before  the  making,  an  advertise- 
ment was  inserted  in  the  newspapers, 
offering  to  lend  money  to  persons  of  re- 
sponsibility, in  consequence  of  which 
tlie  defendant  called  on  advertiser,  who 
fraudulently  procured  from  him  the  note 
in  question,  under  pretense  of  getting  it 
discounted  for  him;  that  there  never 
was  any  consideration  between  any  of 


C  RO  G  AT  E  S     CASE. 


157 


the  parties,  and  that  they  were  all  privy 
to  the  fraud.  Replication  de  injuria. 
Demurrer,  and  the  replication  was  held 
good.  "  This  form,"  said  the  Lord  Chief 
Earon,  delivering  the  judgment  of  the 
court,  "  though  most  commonly  used  in 
actions  of  trespass,  or  trespass  on  the 
case  for  an  injury,  is  not  inappropriate 
to  an  action  of  trespass  on  the  case  for 
a  breach  of  promise,  where  the  plea  ad- 
mits a  breach,  and  contains  only  matter 
of  excuse  for  committing  that  breach. 
The  defendant's  breach  of  promise  may 
be  considered  as  a  wrong  done,  and  the 
matter  included  under  the  general  tra- 
verse absque  tali  causa,  and  thereby  de- 
nied, as  a  matter  of  excuse  alleged  for 
the  breach."  Accord.  Watson  v.  VVilks, 
5  A.  &  E.  247,  where  a  failure  of  con- 
sideration averred  in  the  plea  was  held 
to  be  well  answered  by  de  injuria.  See 
also  Reynolds  v.  Blackburn,  6  Dowl.  21, 
where  the  plea  was  bad  for  duplicity, 
but  both  the  defences  being  by  way  of 
excuse,  it  was  held  to  be  properly  an- 
swered by  de  injuria.  See  Hemingway 
V.  Hamilton,  4  M.  &  W.  117. 

The  improper  use  of  de  injuria  was 
once  held  to  be  ground  of  general  de- 
murrer. Fursden  v.  Weeks,  3  Lev.  65; 
Hooker  v.  Nye,  4  Tyrrwh.  777.  These 
cases  are  however  overruled  by  Parker 
V.  Riley,  3  Mee.  &  Welsh.  230;  and  it 
is  held  now  to  be  the  ground  of  special 
demurrer  only.  S.  P.  Curtis  v.  Marquis 
of  Headford,  0  Dowl.  502. 

As  to  the  evidence  under  this  replica- 
tion— de  injuria  puts  m  issue  the  whole 
of  the  defence  contained  in  the  plea. 
Phillips  V.  Howgate,  5  B.  &  A.  420; 
Barnes  v.  Hunt,  11  East,  451 ;  Lucas 
V.  Nockels,  10  Bingh.  157.  But  if  the 
plea  state  some  authority  in  law,  which 
would  prima  facie  be  a  justification  of 
the  act  complained  of,  the  plaintiff'  will 
not  be  allowed  under  de  injuria  to  show 
an  abuse  of  that  authority  such  as  would, 
according  to  the  doctrine  laid  down  in 
Six  Carpenters'  case,  convert  the  de- 
fendant into  a  tort-feasor  ab  initio.  Lam- 
bert V.  Hodson,  1  Bingh.  317;  Price  v. 
Peek,  1  Bingh.  N.  C.  387.  See  Okes 
V.  Wood,  3  ]\lee  &  W.  1.50.  The  rea- 
son of  which  is,  that  the  defendant  comes 
to  prove  the  truth  of  the  justification 
stated  in  his  plea,  and  would  be  taken 
by  surprise,  were  the  plaintiff"  allowed 
to  make  a  new  case  at  Nisi  Prius  by  a 
species  of  confession  and  avoidance  of  it. 
And  in  analogy  to  this,  it  was  held  in 
Okes  v.  Wood,  2  Mee.  &  Welsh.  792, 


that  the  defend  a  nt'.s  motive  in  commit- 
ting an  assault  which  he  had  justified  in 
order  to  remove  a  riotous  person,  could 
not  be  inquired  into  under  de  injuria, 
notwithstanding  Lucas  v.  Nockells,  10 
Bingh.  157. 

But  if  the  defendant  state  in  his  plea 
some  fact  on  the  existence  or  non-exist- 
ence of  which  the  question  whether  he 
be  a  trespasser  ab  initio  or  no  depends, 
there  it  will  be  sufficient  to  reply  de 
injuria,  as  where  in  trespass  for  break- 
ing, entering,  assaulting,  and  imprison- 
ing, the  defendants  justified  under  a  ca. 
sa.,  "  the  outer  door  being  oj)en,"  the 
plaintiff  was  allowed  under  de  injuria 
to  show  that  it  was  shut,  so  as  to  render 
them  trespassers  ab  initio.  Kerbey  v. 
Denbey,  1  M.  &  Wels.  336. 

There  is  a  point  of  very  frequent  oc- 
currence, to  which,  though  perhaps  not 
immediately  connected  with  the  main 
subject  of  this  note,  I  will  here  advert, 
inasmuch  as  it  mostly  arises  in  cases  in 
which  de  injuria  has  been  adopted  as  a 
replication.  It  often  happens,  that  a  de- 
fendant pleads  not  guilty  to  the  whole 
of  a  declaration,  and  then,  singling  out 
certain  parts  of  it  which  he  thinks  he  is 
able  to  justify,  pleads,  as  to  those,  a  spe- 
cial plea  statmg  his  justification.  In  an- 
swering such  plea,  it  is  necessai-y  for  the 
plaintiff" to  consider  whether  the  special 
plea  cover  the  whole  of  the  substantial 
injury  complained  of  in  the  declaration, 
omitting  only  matter  of  aggravation ; 
for  then,  if  he  rely  upon  the  excess,  he 
ought  to  nevv"  assign  it,  instead  of  merely 
joining  issue  on  not  guilty,  and  replying 
de  injuria  to  the  special  plea.  For  it 
has  been  held,  that  in  such  a  case,  if  the 
defendant  plead  his  special  plea,  the 
plaintiff' v/ill  not  be  at  liberty  to  give 
the. excess  in  evidence  under  the  issue 
joined  on  the  plea  of  not  guilty.  lu 
Monprivatt  v.  Smith,  2  Camp.  175,  to 
trespass  for  breaking  and  entering  a 
house,  staying  therein  three  weeks,  and 
carrying  away  goods,  the  defendants 
pleaded,  1st,  Not  guilty;  2nd,  As  to  break- 
ing, and  entering,  and  staying  twenty- 
four  hours,  parcel  of  the  three  weeks, 
and  also  as  to  carrying  away  the  goods, 
a  justification  under  a  fieri  facias.  Re- 
plication to  the  last  plea,  admitting  the 
writ  de  injuria  sua  propria  absque 
residue  causse.  The  defendants  proved 
the  justification,  but  it  appeared  that 
they  stayed  in  the  house  more  than 
twenty-four  hours.  Garrow  and  Wigly, 
for    the    plaintiff",    submitted    that  the 


158 


SMITHS     LEADING     CASES. 


excess  stood  merely  on  the  plea  of  not 
guilty,  and  that  the  plaintiff' was  entitled 
to  a  verdict  in  respect  of  it.  But  Lord 
Ellenborou^h  ruled,  that,  if  the  plaintiff" 
r*fim  '"'^snded  to  *rely  on  that  excess, 
^  -"he  should  have  done  so  by  a  new 
assignment.  See  Okes  v.  Wood,  3  Mee. 
and  Wels^b.  150;  Atkinson  v.  VVarne,  5 
Tyrwh.  481 ;  Penn  v.  Ward,  5  Tyrwh. 
980. 

In  a  learned  note  to  this  case  the 
reporter  cites  Taylor  v.  Cole,  3  T.  R. 
■  292 ;  1  H.  Bl.  5.5.5 ;  Dye  v.  Leatherdale, 
3  Wils.  20;  Fisherwood  v.  Cannon,  3 
T.  R.  297 ;  Gates  v.  Bayley,  2  Wilson, 
313  ;  and  deduces  from  them,  as  a  gen- 
eral principle,  that  "  where  the  defend- 
ant answers  what  may  reasonably  be 
considered  the  gist  of  the  trespass  de- 
scribed in  the  declaration,  it  will  be  pre- 
sumed, that  the  action  is  carried  on  only 
for  that  which  the  defendant  has  tlius 
attempted  to  justify,  unless  the  plaintiff' 
intimates  by  a  new  assignment,  that  the 
defendant  has  overlooked  a  part  of  the 
grievances  he  complains  of,  or  has  alto- 
gether misapprehended  his  meaning." 
But  if  there  be  several  trespasses  al- 
leged in  one  and  the  same  count  in  the 
declaration,  and  the  defendant  plead  not 
guilty  to  some,  and  specially  to  others, 
and  at  the  trial  prove  the  special  plea ; 
still,  if  the  plaintiff  prove  the  several 
distinct  acts  of  trespass  stated  in  the 
declaration,  he  must  have  a  verdict  for 
as  much  as  is  not  covered  by  the  special 
plea.  Stammers  v.  Yearsley,  10  Bing. 
37 ;  Bush  v.  Parker,  1  Bing.  N.  C.  732 ; 
Phillips  V.  Howgate,  5  B.  &  A.  220. 
The  difficulty  in  these  cases  is  in  decid- 
ing whether  the  matter  excluded  from 
the  plea  of  justification  forms  a  distinct 
wrong,  or  is  only  an  aggravation  of  what 
the  special  plea  professes  to  justify.  In 
Bush  v.  Parker,  the  action  was  in  tres- 
pass for  assaulting  the  plaintiff',  seizing, 
pulling,  and  dragging  him,  forcing  him 
into  a  pond  and  there  imprisoning  him. 
— Pleas :  1.  Not  guilty ;  2.  As  to  the 
assaulting  and  seizing,  and  a  little  pull- 
ing and  dragging  the  plaintiff",  a  justifi- 
cation in  defence  of  possession.  The 
jury  having  found  the  defendants  guilty 
on  the  first  issue,  and  a  verdict  for  them 
on  the  second,  it  was  moved  to  enter 
judgment  for  them  on  the  whole  record, 
but  the  Court  of  Common  Pleas  refused : 
"  I  agree,"  said  Tindal,  C.  J.,  in  the  rule 
of  law,  that  where,  in  trespass,  the  de- 
fendant pleads  a  justification  going  to  the 
gist  of  the  action,  it  is  not  necessary  to 


include  that  which  is  mere  matter  of  ag- 
gravation ;  and  this  brings  us  to  the  appli- 
cation of  the  rule,  and  the  inquiry  whe- 
ther it  will  serve  the  defendants  or  not; 
and  we  have  only  to  look  at  the  pleadings 
here,  and  to  apply  our  common  sense  to 
the  allegation,  that  the  defendants  drag- 
ged the  plaintiff"  through  the  pond,  to  see 
that  it  is  a  distinct  and  substantive  tres- 
pass, and  not  part  of  the  assault  of  which 
the  plaintiff'first  complains."  Ld.  Lough- 
borough, in  Taylor  v.  Cole,  uses  some 
language  cited  by  the  chief  justice  in 
Bush  V.  Parker,  which  may  prove  useful 
in  distinguishing  between  statements  of 
aggravation  and  statements  of  several 
trespasses,  such  as  that  in  the  latter  case. 
The  declaration  was  for  breaking  and 
entering  the  plaintiff"'s  house,  and  expell- 
ing him.  Plea — justifying  the  breaking 
and  entering  only. — "  Undoubtedly,"  said 
his  Lordship,  "  to  enter  into  a  house  and 
to  expel  the  possessor,  may  be  distinct 
acts,  and  they  may  be  also  connected. 
But  where  the  plaintiff  charges  them  as 
parts  of  one  trespass,  as  is  the  case  in 
this  declaration  ;  and  the  defendant  sets 
forth  a  justification  of  the  principal  act, 
the  entry ;  it  is  just  that  the  plaintiff' 
should,  either  by  replication  or  new  as- 
signment, state,  that  he  insists  upon  the 
expulsion  as  a  substantive  trespass,  sup- 
posing the  entry  should  be  lawful.  If 
he  does  not,  it  is  just  to  consider  it  only 
as  matter  of  aggravation."  There  is  a 
class  of  cases  decided  upon  st.  22  &  23 
Car.  2,  c.  9,  certainly  with  no  view  to 
the  present  question,  but  which  yet,  upon 
examination,  seem  to  have  some  bearing 
on  it.  Their  effect  is  thus  stated  by 
Mr.  Tidd,  in  his  Practice,  9th  edition, 
904:  "Where  an  injury  is  done  to  a 
personal  chattel,  it  is  not  within  the 
statute ;  or  where  an  injury  to  a  per- 
sonal chattel  is  laid  in  the  same  declara- 
tion with  an  assault  and  battery,  or  local 
trespass :  and  consequently,  in  these 
cases,  though  the  damages  be  under  forty 
shillings,  the  plaintiff"  is  entitled  to  full 
costs  without  a  certificate.  But  then 
it  must  be  a  substantive  independent 
injury ;  for  lohere  it  is  laid  or  proved 
merely  in  aggravation  of  damage,  as  a 
mode  of  qualification  of  the  assault  and 
battery  or  local  trespass,  or  there  is  a 
verdict  for  the  defendant  upon  that  part 
of  the  declaration  which  charges  him 
with  injury  to  a  personal  chattel,  it  is 
within  the  statute.  So  where  a  lacera- 
vit,  *or  tearing  the  plaintifl^'s  r  ^./^,  -, 
clothes,  is  laid  in  the  declaration,  •-        -' 


crogate's   case.  159 

or  found  by  the  jury,  to  be  merely  conse-  will  be  observed,  that  the  question,  as  in 

quential  to,  or  committed  at  the  same  Monprivattv,  Smith,  Taylor  v.  Cole,  and 

time    as,  an   assault  and  battery,   the  Bush  v.  Parker,  was,  whether  a  particu- 

plaintiff'  recovering  less  than  forty  shil-  lar  injury,  stated  in  tlie  declaration,  was 

ling's  damages,  is  not   entitled    to  full  part  of  the  gist  of  the  action,  or  merely 

costs witiioul;  a  certificate;  and  in  a  late  in  aggravation.     And  the  decisions  in 

case  it  was  held  by  the  Court  of  Common  those  cases  may  therefore  be  found  not 

Pleas,  that  if  the  plaintiff  declare,  in  altogether  inapplicable  in  controversies 

one  count  for  assaulting  him,  and  beat-  arising  on  the  point  which  we  have  just 

ing  his  horse,  on  which  he  was  riding,  been  discussing. 

whereby   it  was  injured,  and  the  jury         An  authority  given  by  law,  but  deriv- 

gave  a  verdict  with  general  damages  able  from   the  plaintiff's  act,  cannot  be^ 

under  forty  shillings,  tlie  plaintiff  shall  put  in  issue  by  de  injuria.     Judgment  of 

have  no  more  costs  than  damages."    In  Patteson,   J.,   in  Bowler  v.    Nicholson, 

the  cases  thus  collected  by  Mr.  Tidd,  it  Q.  B.  Trin.  1S40,  Law  Jour.  353. 


In  this  country,  where  costs  are  seldom  larg-e  in  amount,  and  where 
amendments  are  readily  allowed,  it  is  important  to  observe  that,  even  where 
the  replication  de  injuria  is  improperly  employed,  the  defect  will  be  cured 
by  verdict.  This  point  was  determined  in  New  York,  in  the  'case  of  Ly- 
tic V.  Lee,  5  John.  112  ;  and  as  this  decision  agrees  with  the  English  cases 
cited  above,  it  must  be  taken  as  stating  the  law  on  this  subject  throughout 
the  United  States. 

In  this  case,  however,  the  coiirt  held  that  the  replication  would  have  been 
bad  on  special  demurrer,  as  the  plea  was  one  of  justification,  not  excuse, 
and  alleged  a  complete  right  in  the  defendants,  under  process  regularly 
issued  by  a  court  of  record.     This  doctrine  is  based  upon  the  obvious  dis- 
tinction, that  a  replication  traversing  the  plea  of  the  defendant,  as  assigning 
a  cause  for  his  act,  cannot  be  properly  employed,  where  his  defence  exists 
in  reahty  on  the  ground  that  the  act  complained  of  was  right  in  itself;  and 
was  again  recognized  by  the  Supreme  Court  of  New  York,  in  the  cases  of 
Plumb  V.  M'Crea,  12  John.  491  ;  Griswold  v.  Sedgwick,  1  Wendell,  26; 
while  in  ,Coburn  v.  Hopkins,  4  Wendell,  577,  in  Stickle  v.  Richmond,  1 
Hill,  78,  it  was  decided  equally  to    apply,  notwithstanding  the   opposite 
opinion  held  in  Selby  v.  Bardons,  (supra)  to  the  exclusion  of  a  replication 
of  this  nature,  in  which  the  legal  authority  relied  on  was  a  mere  warrant 
from  a  justice  of  the  peace,  since  the  justification  shown  by  the  plea,  was 
equally  complete,  whether  the  process  had  issued  from  a  court  of  record  or 
from  an   inferior  source.     As  it  turns,  however,  on  a  question  between 
abstract  right,  and  right  derived  from  circumstances,  it  must  evidently  be 
difficult  to  apply  it  with  precision  in  practice.     In  Collier  v.  Moulton,  7 
Johnson,  109,  the  court  expressed  their  opinion  that,  under  a  replication  de 
injuria  to  a  plea  of  son  assault  demesne,  "  moUitur  manus  imposuit,"  could 
not  be  given  in  evidence  ;  since  that  instead  of  traversing  the  plea  would 
be  merely  in  confession  and  avoidance.     This  decision  evidently  rests  on  the 
same  general  principle  that  the  replication  de  injuria  sua  propria  can  never 
avail,  except  as  a  direct  denial  of  some   cause  alleged  as  an  excuse  by  the 
defendant.     Of  course  it  follows  that  if  the  plea  amounts  to  a  denial  of  the 


160  smith's    LEADING    CASES. 

breach,  whether  directly  or  by  implication,  it  must  equally  be  inadmissible, 
Schild  V.  Kilpin,  8  M.  &  W.  675. 

In  Lytle  v.  Lee,  cited  above,  the  C.  J.  threw  out  a  doubt  whether  matter 
of  record,  when  so  averred,  in  connexion  with  matter  of  fact,  as  to  constitute 
but  one  plea,  might  not  be  traversed  in  a  replication  de  Injuria  ;  and  Welch 
J.,  in  delivering  the  opinion  of  the  court  in  the  case  of  Sampson  v.  Henry, 
11  Pick.  379,  expressed  his  opinion,  that  the  same  replication  mfght  be 
resorted  to,  when  the  defendant  pleaded  in  excuse  for  an  assault  and  battery, 
that  it  was  committed  in  defence  of  the  possession  of  a  dwelling  house  of 
which  he  was  seised,  and  Avhich  the  plaintiff,  attempted  to  enter  without 
right.     This  last  opinion  is  clearly  not  law. 

In  order  that  a  plea  should  be  good,  it  is  necessary  that  it  should  present 
but  a  single  defence,  although  the  facts  which  go  to  make  up  this  point 
may  be  many,  and  it  might  consequently  be  supposed,  that  when  the  plea 
is  good,  and  the  defence  it  contains  single,  a  traverse  of  the  fact  constitut- 
ing that  defence  would  not  be  bad  for  duplicitJ^  Such,  however,  is  not  in 
all  instances  the  case ;  and  in  Tubbs  v.  Caswell,  8  Wendell,  129,  where  the 
defendant  pleaded  to  an  action  on  a  promissory  note,  that  it  was  made 
jointly  by  them  with  another  party  whom  the  plaintiff  had  released,  and  the 
plaintiff  in  reply  traversed  both  the  making  and  release,  the  New  York 
Court  of  Errors  held  that  the  plea  was  good,  and  while  containing  two 
points,  presented  only  a  single  defence,  but  that  the  replication,  though  tra- 
versing merely  the  matters  which  went  to  make  up  that  defence,  was  bad 
for  duplicity.  But  it  appears  from  the  case  of  Griffin  v.  Yates,  cited  above 
in  the  note  of  the  English  editor,  that  when  a  direct  traverse  of  several 
points  going  to  make  up  a  single  defence  in  a  plea  v/ill  be  bad  for  dupli- 
city ;  the  traverse  absque  tali  causa,  although  putting  the  same  number  of 
points  in  issue,  will  be  good  as  far  as  this  fault  is  concerned,  if  allowable  in 
in  other  respects.  Whether  this  opinion  be  consistent  with  the  last  resolu- 
tion in  Crogate's  case,  that  this  form  of  replication  is  bad  when  multifari- 
ous in  matter,  it  is  too  late  to  inquire,  since  it  is  abundantly  supported  by 
the  decision  in  Selby  v.  Bardons,  suprn,  57,  and  by  many  other  cases. 
Hence  arises  the  great  advantage  of  this  mode  of  replying,  when  a  special 
plea  has  been  resorted  to,  since  it  enables  the  plaintiff  to  traverse  all  the  facts 
contained  in  any  single  point,  instead  of  being  obliged  to  rest  the  fate  of 
his  cause  on  an  issue  joined  on  one  fact  alone.  This  has  caused  its  appli- 
cation in  England  to  actions  of  assumpsit ;  and  there  does  not  appear  to  be 
any  sutTicient  reason,  since  it  has  been  resorted  to  and  sanctioned  in  actions 
nominally  in  case,  but  really  of  contract,  why  it  should  not  be  employed, 
even  in  those  actions  where  both  form  and  substance  are  of  the  latter  cha- 
racter. On  this  ground,  since  the  last  edition  of  this  work,  the  Court  of 
Gtueen's  Bench  sustained  a  replication  de  injuria  in  an  action  of  debt ;  Pur- 
chell  V.  Salter,  1  Q,.  B.  197  ;  and  although  the  decision  was  reversed  on 
another  point  by  the  Exchequer  Chamber,  Ibid.  209,  it  has  since  been  sus- 
tained as  to  this,  by  the  court  of  Exchequer,  in  the  case  of  Cowper  v.  Gar- 
bett,  13  M.  &  W.  333. 

The  recent  cases  in  England  appear  to  determine  that  in  actions  on  bills 
or  notes,  even  where,  from  the  nature  of  the  plea  as  setting  up  matter  in 
avoidance  of  the  contract,  de  injuria,  could  not  be  replied  were  the  suit 
between  the  original  parties  to  the  instrument,  it  will  be  good  in  an  action 


crogate's  case.  161 

brought  by  the  indorsee,  since  the  law  will  intend  that  the  plaintiff  is  a  bona 
fide  holder  for  value,  and  prima  facie  entitled  to  recover,  notwithstanding 
the  fraud  or  want  of  consideration  which  may  have  existed  in  the  first 
instance  ;  Humphreys  v.  O'Connel,  7  M.  &  W.  370.  Scott  v.  Chapellon. 
5  Scott,  N.  R.  148.     Gibbons  v.  Mottram,  6  M.  &  G.  691. 

But  where  in  an  action  against  the  acceptor  of  a  bill  of  exchange,  the  plea 
set  forth  that  before  suit  brought,  the  plaintiff  endorsed  the  bill  to  a  third 
person,  to  whom  the  defendant  was  liable  for  its  amount,  a  replication  de 
injuria,  was  held  inadmissible  ;  Schild  v.  Kilpin,  8  M.  &  W.  675  ;  and  in 
Gibbons  v.  Mottram,  6  M.  &  G.  691,  it  was  said  that  this  decision  rested 
on  the  ground  that  the  indorsement  set  up  as  a  defence,  was  to  be  regarded 
as  an  averment  of  an  authority  given  by  the  plaintiff  to  a  third  person  to 
receive  payment  from  the  defendant,  and  was  therefore  within  the  third 
resolution  in  Crogate's  case.  The  authority  of  the  plea  in  Schild  v.  Kil- 
pin, was  therefore  determined  to  be  inapplicable  to  the  plea  in  Gibbons  v. 
Mattram,  which  consisted  in  an  averment  that  the  bill  had  been  given  as 
collateral  security  for  a  debt,  which  had  been  paid  by  the  defendant  before 
the  indorsement  to  the  plaintiff,  of  which  he  had  notice,  as  the  defence  thus 
set  up,  rested  merely  in  excuse  ;  and  contained  no  matter  of  authority  or 
justification. 

In  Oystead  v.  Shed,  12  Mass.  Reps.  506,  the  very  obvious  principle  was 
laid  down,  that  when  the  defendant  justified  under  a  writ  the  entering  upon 
a  house,  which  was  the  trespass  complained  of  in  the  declaration,  the  plain- 
tiff could  not  under  a  replication  admitting  the  writ  and  replying  de  injuria, 
&c.,  absque  residuo  causfe,  give  in  evidence  new  matter  to  show  that  the 
defendant  had  broken  open  the  outer  door,  since  that  would  be  to  bring  for- 
ward a  distinct  cause  of  trespass,  on  which,  if  he  meant  to  insist,  he  ought 
to  have  new  assigned.  Substantially  the  same  point  was  held  in  Stickle  v. 
Richmond,  already  cited.  The  plaintiff,  may,  however,  on  trial  under 
this  replication,  where  disobedience  of  orders  has  been  pleaded  by  the 
defendant,  as  master  of  a  vessel,  in  excuse  for  assault  and  battery  commit- 
ted by  tying  up  the  plaintiff  on  board  the  vessel  and  whipping  him,  without 
attempting  to  rebut  the  facts  brought  forward  in  the  plea  to  show  that  mod- 
erate whipping  was  justifiable,  give  evidence  to  prove  that  the  whipping  was 
immoderate,  and  thus  in  effect  deny  the  cause,  by  showing  that  the  fact 
Avas  without  the  limits  of  its  operation.  The  distinction  between  this  case 
and  the  one  last  cited  is,  that  in  the  former,  new  facts  were  insisted  on, 
while  in  the  latter,  evidence  was  merely  given  to  prove  excess  in  the  old. 
Hannen  v.  Edes,  12  Mass.  351.  The  same  principles  were  applied  in  the 
case  of  Sampson  v.  Smith,  in  the  same  volume  of  reports,  page  365. 

The  two  cases  last  cited  appear  to  point  out  an  exception  to  the  doctrine 
of  new  assignment,  under  which  it  is  ordinarily  held,  that  when  the  plain- 
tiff relies  upon  an  excess,  he  must  re-assign  such  excess  instead  of  reply- 
ing de  injuria,  by  establishing,  that  if  the  excess  take  the  trespass  altogether 
out  of  the  operation  of  the  cause,  evidence  of  such  excess  will  be  admissi- 
ble under  an  issue  joined  on  a  traverse  arising  under  the  general  replication 
de  injuria  sua  propria. 

H. 


Vol.  I.— 11 


162  smith's   leading   cases. 


[^162]       *THE  SIX  CARPENTERS'  CASE.(«) 


MICH.— 8  JACOBI  1. 

[reported  8  COKE,  290.] 

If  a  man  abuse  an  authority  given  him  by  the  law  he  becomes  a  trespasser  ab  initio.— 
Contra  of  an  authority  given  by  the  party. — The  abuse  is  good  matter  of  replication. 
— Mere  non  feasance  does  not  amount  to  such  abuse  as  makes  a  man  a  trespasser  ab 
initio. 

In  trespass  brought  by  John   Yaux  against  Thomas  Newman,  carpenter, 
and   five  other   carpenters,  for  breaking   his   house,   and    for  an  assault 
and  battery,  1   Sept.   7  Jac,  in  London,  in  the   parish  of  St.  Giles  extra 
Cripplegate,  in   the  ward  of  Cripplegate,  &c.,  and  upon  the(6)  new  assign- 
ment, the  plaintiff  assigned  the  trespass   in  a  house  called  the  Q-ueen's 
Head.     The  defendants  to  all  the  trespass  praster  fractionem  donius  pleaded 
not  guilty ;  and  as  to  the   breaking  of  the  house  said,  that  the  said  house, 
prted'  teiDpore  quo,  &c.,  et  dui  antea  et  postea,  AA-^as  a  common  wine  tavern 
of  the  said  John  Vaux,  with  a  common  sign  at  the  door  of  the  said  house 
fixed  &c.,  by  force  whereof  the   defendants,  praed'  tempore  quo,  &c.,  viz. 
hora  quartapost  meridiem,  into  the  said  house,  the  door  thereof  being  open 
did  enter,  and  did  there  buy  and  drink  a  quart  of  wine,  and  there  paid  for 
the  same,  &c.     The  plantiff,  by  ivcnj  of  replication,  did  confess,  that  the 
said  house  was   a  common(c)   tavern,  and  that  they   entered  into   it,  and 
bought  and  drank  a  quart  of  wine,  and    paid  for  it ;  but  further  said  that 
one  John  Ridding,  servant  of  the  said  John  Vaux,  at  the  request  of  the  said 
defendants,  did  there  then  deliver  them  another  quart  of  wine,  and  a  penny- 
worth of  bread,  amounting  to   Sd.,  and   then  they  there  did  drink   the  said 
wine,  and  eat  the  bread,  and    upon  request  did  refuse  to  pay  for  the  same  : 
r  *«*?  "i  *"P°'^  which  the  defendants  did  demur  in  law  :  and  the  only  point 
L         -'in  this  case  was,  if  the  denying  to  pay  for  the  wine,  or  non-pay- 
ment, which  is  all   one  (for  every  non-payment,  upon  a  request,  is  a  deny- 
ing in  law,)  makes  the   entry  into  the  tavern  tortious.     And  first,  it  was 
resolved  when  entry,  authority  or{d)  a  license  is  given  to  any  one  by  the 
hno,  and  he  doth  abuse  it,  he  shall  be  a  trespasser  ab  initio  ;  but  ivhere  an 
entry,  authority,  or  license  is  given  by  theparty,(e)  and  he  abuses  it,  there 
he  must  be  punished  for  his  abuse,  but  shall  not  be  a  trespasser  ab  initio. 
And  the  reason  of  this  difference  is,  that  in  a  case  of  a  general  authority 
or  license  of  law,(y)  the  law  adjudges  by  the  subsequent  act,  quo  animo,  or 
to  what  intent  he  entered,  for  acta  exteriora  indicant  interiora  secreta.     Vide 
11  H.  4,  75,  b.      But  when  the  party  gives   an  authority  or  license  himself 

(a)  See  6  Mod.  70.  21G.     Fitzgib.  8G.  185.  0')  2  Co.  5.  18  b. 

(c)  Kclw.  38,  a.  (r/)  2  Roll.  561.     Yclv.  96,  97. 

(e)  5  »I.  7,  11 ,  a.     Perk.  sect.  191.     Yclv.  96,  97.    21  E.  4,  19,  b. 
(/)  2  Roll.  561.    21  E.  4,  19,  b,  76,  b.  per  Catesby.    Yelv.  96,  97.     Perk.  sect.  191.  5 
H.  7,  11,  a. 


THE     SIX     carpenters'     CASE.  163 

to  do  anything,  he  cannot,  for  any  subsequent  cause,  punish  that  which  is 
(lone  by  his  own  authority  or  Hcense,  and  therefore  the  law  gives  'autho- 
rity to  enter  into  a  common  inn,  or  tavern  ;  so  to  the  lord  to  distrain  ;  to 
the  owner  of  the  ground  to  distrain  damage-feasant ;  to  him  in  reversion  to 
see  if  waste  be  done ;  to  the  commoner  to  enter  upon  the  land  to  see  his 
cattle  ;  and  such  like.  Vide  12  E.  4,  8,  b.  21  E.  4,  19,  b.  5  H.  7,  11, 
a.  9H.  6,  29,  b.  lie.  4,75,  b.  3  H.  7.  15,  b.  28  H.  6,  5,  b.  But 
if  he  who  enters  into  the  inn  or  tavern  doth  a  trespass, (g)  as  if  he  carries 
away  anything  ;  or  if  the  lord  who  distrains  for  rent,  or  the  owner  for  dam- 
age feasant,  works  or  kills  the  distress  ;{h)  or  if  he  who  enters  to  see  waste 
breaks  the  house, (i)  orstays  there  all  night;  or  if  the  commoner  cuts  down 
a  tree  ;  in  these  and  the  like  cases,  the  law  adjudges  that  he  entered  for  that 
purpose  ;  and  because  the  act  which  demonstrates  it  is  a  trespass,  he  shall 
be  a  trespasser  ab  initio,  as  it  appears  in  all  the  said  books.  So  if(A:)  a  pur- 
veyor takes  my  cattle  by  force  of  a  commission,  for  the  king's  house,  it  is 
lawful ;  but  if  he  sells  them  in  the  market,  now  the  first  taking  is  wrong- 
ful;  and  therewith  agrees  18  H.  6,  19  b.     Et  sic  de  similibus. 

2.  It  icas  resolved  per  totam  curiam,  that{l)  not  doing  cannot  make 
the  party,  who  has  authority  or  license  by  the  lata,  a  trespasser  ab  initio, 
because  not  doing  is  no  trespass,  and  therefore  if  the  lessor  distrains  for 
his  rent,  and  thereupon  the  lessee  tenders  him  the  rent  and  arrears,  &c., 
and  requires  his  beasts  again,  and  he  will  not  deliver  them,  this  not  doing 
^cannot  make  him  a  trespasser  ab  initio;  and  therewith  agrees  33  j-  *g^ -i 
H.  6,  47,  a.  So  if  a  man  takes  cattle  damage-feasant,  and  the  other  L  -■ 
offers  sufficient  amends,  and  he  refuse  to  re-deliver  them^  now  if  he  sues  a 
replevin,  he  shall  recover(m)  damages  only  for  the  detaining  of  them,  and 
not  for  the  taking,  for  that  was  lawful ;  and  therewith  agrees  F.  N.  B.  69, 
g,  temp.  E.  1.  Replevin,  27.  27  E.  3,  88.  45  E.  3,  9.  So  in  the  case 
at  bar,(n)  for  not  paying  for  the  wine,  the  defendants  shall  not  be  trespassers, 
for  the  denying  to  pay  for  it  is  no  trepass,  and  therefore  they  cannot  be  trespas- 
sers ab  initio;  and  therewith  agrees  directly  in  the  point  12  E.  4,  9,  b.(o) 
For  there  Pigot,  Serjeant,  puts  this  very  case,  if  one  comes  into  a  tavern  to 
drink,  and  when  he  has  drunk  he  goes  away,  and  will  not  pay  the  taverner, 
the  taverner  shall  have  an  action  of  trespass  against  him  for  his  entry.  To 
which  Brian,  Chief  Justice,  said,  the  said  case  which  Pigot  has  put  is  not 
law,(7))  for  it  is  no  trespass,  but  the  taverner  shall  have  an  action  of  debt :  and 
there  before  Brown  held,(;9)  that  if  I  bring  cloth  to  a  tailor,  to  have  a  gown 
made,  if  the  price  be  not  agreed  in  certain  before,  how  much  I  shall  pay  for 
the  making,  he  shall  not  have  an  action  of  debt  against  me  ;  which  is  meant  of 
a  general  action  of  debt :  but  the  tailor  in  such  a  case  shall  have  a  special 
action  of  debt  ',{q)  scil.  that  A.  did  put  cloth  to  him  to  make  a  gown  thereof 
for  the  said  A.,  and  that  A.  would  pay  him  as  much  for  making,  and  all 

(0-)  Perk.  sect.  119.     2  E.  4,  5.     Cro.  Car.  196.     Yelv.  96. 

(A)  12  E.  4,  8,  b.  9  Co.  11,  a.     1  And.  65.     Cro.  Jac.  149.     Perk.  sect.  191. 

(t)  2  Roll.  561.     11  H.  4,  75,  b.     Fitz.  Trcsp.  176.    Br.  Trespass,  97.    Br.  Replica.  12, 

(fc)  2  Roll.  561.     18  H.  6,  9,  b.     2  Inst.  546. 

(0  Cr.  Car.  196.     2  Bulstr.  312.     1  Roll.  Rep.  130. 

(m)  Lit.  Rep.  34.     Dr.  &  Stud.  lib.  2,  112,  b.     Hetl.  16. 

(n)  1  Roll.  Rep.  60.    2  Bulst.  312.  (o)  1  Sid.  5.     12  E.  4,  9,  a.  b, 

(p)  12  E.  4,  9,  b.  iq)  1  Sid.  5. 


164  smith's  leading  cases. 

necessaries  thereto,  as  he  should  deserve,  and  that  for  making  thereof,  and 
all  necessaries  thereto,  he  deserves  so  much,  for  which  he  brings  his  action 
of  debt :  in  that  case,  the  putting  of  his  cloth  to  the  tailor  to  be  made  into  a 
gown,  is  sufficient  evidence  to  prove  the  said  special  contract  for  the  law 
implies  it;  and  if  the  tailor  over-values  the  making,  or  the  necessaries  to  it, 
the  jury  may  mitigate  it,  and  the  plaintiff^ shall  recover  so  much  as  they  shall 
find,  and  shall  be  barred  for  the  residue.  But  if  the  tailor  (as  they  usej 
makes  a  bill,  and  he  himself  values  the  making  and  the  necessaries  thereof, 
he  shall  not  have  an  action  of  debt  for  his  own  value,  and  declare  of  a 
retainer  of  him  to  make  a  gown,  &c.  for  so  much,  unless  it  is  so  specially 
agreed.  But  in  such  case  he  may(r)  detain  the  garment  until  he  is  paid- 
as  the  hostler  may  the  horse.  Vide  Br.  Distress,  70 ;  and  all  this  was 
^^_-,  resolved  by  the  court.  Vide  the  Book  in  *30  Ass.  pi.  38,  John 
L  J  Matrever's  case,  it  was  held  by  the  court,  that  if  the  lord,  or  his 
bailiff  comes  to  distrain, (s)  and  before  the  distress  the  tenant  tenders  the 
arrears  upon  the  land,  there  the  distress  taken  for  it  is  tortious.  The  same 
law  for  damage-feasant,  if  before  the  distress  he  tenders  sufficient  amends  ; 
and  therewith  agrees  7  E.  3,  8,  b,  in  the  Mr.  of  St.  Mark's  case,  and  so  is 
the  opinion  of  Hull  to  be  understood  in  13  H.  4,  17,  b,(^)  which  is  not  well 
abridged  in  title  Trespass,  180.  Note  reader  this  difference,  that  tender 
upon  theiu)  land  before  the{v)  distress  makes  the  distress  tortious  ;  tender 
after  the  distress,  and  before  the  impounding,  makes  the  detainer,  and  not 
the  taking,  wrongful ;]  tender  after{?v)  the  impounding  makes  neither  the 
one  nor  the  other  wrongful ;  for  then  it  comes  too  late  ;j^  because  then  the 
cause  is  pid  to  the  trial  of  the  lau\  to  be  there  determined.  But  after  the 
law  has  determined  it,  and  the  avowant  has  return  irreplevisable,  yet  if  the 
plaintiff  makes  him  a  sufficient  tender,  he  may  have  an  action  of  detinue 
for  the  detainer  after :  or  he  may  upon  satisfaction  made  in  court,  have  a 
writ  for  the  re-delivery  of  his  goods  ;  and  therewith  agree  the  said  books  in 
13  H.  4,  17,  b.  14  H.  4,  4.  Registr'  Judic'  37.  45  E.  3,  9,  and  all  the 
books  before.  Vide  14  Ed.  4,  4,  b;  2,  H.  6,  12  ;  22  Hen.  6,  57  ;  Doctor 
and  Student,  lib.  2,  cap.  27  ;  Br.  Distress,  72,  and  Pilkington's  case,  in  the 
Fifth  Part  of  my  Reports  fol.  76,  and  so  all  the  books  which  prima  facie 
seems  to  disagree,  are  upon  full  and  pregnant  reason  well  reconciled  and 
agreed. 


From  this  case,  which  is  one  of  the  1.  Tliat  if  a  man  abuse  an  authority 
most  celebrated  in  Lord  Coke's  Reports,  given  to  him  by  the  law,  he  becomes  a 
three  points  are  to  be  collected :  trespasser  ab  initio. 

'  (r)  Hob.  42.  Yelv.  67.  Cro.  Car.  271,272.  Br.  Distress,  71.  Palm.  223.  Hut.  101. 
22  E.  4.  49,  b.  Moor,  877.  5  Ed.  4,  2,  b.  1  Roll.  Rep.  44.  2  Roll.  Rep.  439.  2  Roll.  85. 
928.     3  Bulstr.  2G9.  (s)  Br.  Distr.  37.     Br.  Tender,  &c.  18. 

(<)  2  Roll.  561.  Sec  Anscombe  V.  Shore,  1  Camp.  285.  1  Taunt.  261.  Replevin  for 
takiiifT  and  impounding,  plea,  a  tender  nfter  the  takin;;r  and  before  impounding :  held  good, 
for  the  detaining  after  tender  is  a  new  taking.     Evans  v.  Elliott,  5  Ad.  &  Ell.  142. 

(»0  2  Sid.  40.  (p)  5  Co.  76,  a.    2  Inst.  107. 

(to)  2  Roll.  561.     1  Brovvnl.  173.     2  Ini^t.  107.     5  Co.  76,  a. 

It  See  Gulliver  v.  Cosens,  1  C.  B.  788.] 

[t  Ace.  Ellis  V.  Taylor,  8  M.  &  W.  415  ;  Ladd  v.  Thomas,  12  A.  &.  E.  117.] 


SIX   carpenters'   case. 


165 


2.  That  in  an  action  of  trespass,  if  the 
authority  be  pleaded,  the  subsequent 
abuse  may  be  replied. 

3.  That  a  mere  nonfeasance  does  not 
amount  to  such  an  abuse  as  renders  a 
man  a  trespasser  ab  initio. 

The  first  of  these  points  has  been  fre- 
quently confirmed.  In  Oxley  v.  Watts, 
1  T.  K.  12,  the  plaintitt'  sued  the  defen- 
dant in  trespass  for  taking  a  horse ;  the 
defendant  justified  taking  him  as  an 
estray.  Replication,  that,  after  the  tak- 
ing mentioned  in  the  declaration,  the 
defendant  worked  the  horse,  and  so  be- 
came a  trespasser  ab  initio.  On  motion 
in  arrest  of  judgment,  the  court  held  the 
replication  good,  and  the  defendant  a 
trespasser  ab  initio.  The  same  point, 
precisely,  was  decided  in  Bagshaw  v. 
Goward,  B.  N.  P.  81 ;  Cro.  .Tac.  147, 
where  it  arose  on  demurrer;  accord. 
Gargrave  v.  Smith,  Salk.  221 ;  Sir  Ralph 
Bovey's  case,  1  Vent.  217 ;  Ailkenhead 
v.  Blades,  5  Taunt.  198.  One  conse- 
(fuence  of  this  doctrine  was,  that  if  a 
party,  entering  lawfully  to  make  a  dis- 
tress, committed  any  subsequent  abuse, 
he  became  a  trespasser  ab  initio.  In 
r  *fir  1  *Crargrave  V.  Smith,  Salk.  221, 
'■  J    and    Dye    v.    Leathordale,    3 

Wilson,  20,  this  was  expressly  decided. 
As  it  was  found,  however,  that  this  doc- 
trine bore  extremely  hard  on  landlords, 
Stat.  11  G.  2,  c.  19,  s.  19,  provided, 
•'That  where  any  distress  shall  be  made 
for  any  rent  justly  due,  and  any  irregu- 
larity or  unlawful  act  shall  be  after- 
wards done  by  the  party  distraining,  or 
his  agent,  the  distress  shall  not  be  deem- 
ed unlawful,  nor  the  distrainer  a  tres- 
passer ab  initio ;  but  the  party  grieved 
may  recover  satisfaction  for  the  damage 
m  a  special  action  of  trespass,  or  on  the 
case,  at  the  election  of  the  plaintifl^  and 
if  he  recover,  he  shall  have  full  costs." 
The  true  construction  of  the  above  words 
"  trespass,  or  on  the  case,"  is,  tliat  the 
party  injured  must  bring  trespass  if  the 
injury  be  a  trespass,  and  case,  if  it  be  the 
subject-matter  of  an  action  on  the  case. 
The  nature  of  the  irregularity  deter- 
mines the  form  of  action.  Hence,  case 
ought  to  be  brought  for  an  irregularity 
in  omitting  to  appraise  the  goods  before 
selling  them,  and  trespass  for  remaining 
in  possession  beyond  the  five  days,  Win- 
terbourne  v.  Morgan,  11  East,  39.5;  see 
Etherton  v.  Poppfewell,  1  East,  139.  [If 
there  be  an  excess  or  abuse  as  to  part  of 
a  distress,  the  landlord  is  a  trespasser  as 
to  that  part  only,  and  not  as  to  the  whole 


distress;  Harvey  v.  Pocock,  11  M.  &  W. 
740.]  By  17  G.  2,  c.  38,  s.  8,  where  any 
distress  shall  be  made  for  money  justly 
due  for  the  relief  of  the  poor,  the  party 
distraining  t:hall  not  be  deemed  a  tres- 
passer, ab  initio,  on  account  of  any  act 
subsequently  done  by  him ;  but  the  party 
grieved  may  recover  satisfaction  for  the 
special  damage  in  an  action  of  trespass, 
or  on  the  case,  with  full  costs,  unless 
tender  of  amends  is  made  before  action 
brought. 

As  to  tlie  right  of  a  plaintiff  to  reply 
the  abuse,  where  it  is  such  as  renders 
the  defendant,  who  has  pleaded  the  au- 
thority which  he  has  abused,  a  trespass- 
er ab  initio;  that  is  established  by  seve- 
ral cases.  In  the  principal  case  it  seems 
to  have  been  assumed  ;  for  no  objection 
was  taken  to  the  replication  as  being  a 
departure;  but  Lord  Coke  says,  that  the 
only  point  was,  whether  the  denying  to 
pay  made  the  first  entry  into  the  tavern 
tortious.  In  Gargrave  V.  Smith,  Salk. 
221,  B.  N.  P.  81,  trespass  for  taking 
goods.  Plea,  that  defendant  distrained 
them  damage-feasant.  Replication,  that 
he  afterwards  converted  them  to  his 
own  use.  "  On  demurrer,  it  was  holden 
to  be  no  departure,  but  to  make  good  the 
declaration;  for  he  that  abusesa  distress 
is  a  trespasser  ab  initio ;  and  it  would  be 
of  no  avail  to  the  plaintiff'  to  state  the 
conversion  in  his  declaration,  for  it  is  in 
no  ways  necessary  to  his  action,  and,  if 
alleged,  need  not  be  answered.  It  would 
be  out  of  time  to  state  it  in  the  declara- 
tion, but  it  must  come  in  in  the  replica- 
tion," See  too  Sir  R.  Bovey's  case,  1 
Vent.  217,  where  Hale,  C.  J.,  said,  that 
to  state  it  in  the  declaration  would  be 
"  like  leaping  before  you  came  to  the 
stile :"  and  see  Taylor  v.  Cole,  3  T.  R. 
292.  And  the  only  proper  course  is  to 
reply  specially;  lor  if  the  defendant 
p]e:id  an  authority  in  law,  and  the  plain- 
tift"  rely  on  an  abuse,  he  must  not  reply 
de  injuria,  as  will  be  seen  in  the  note  to 
Crogate's  case,  ante,  p.  59,  and  Price  v. 
Peck,  1  Bing.  N.  C.  380. 

It  has  been  held  that  the  sheriff,  if 
indeed  he  be  a  trespasser  at  all,  is  not 
at  all  events  so  ab  initio,  on  account  of 
his  detaining  a  prisoner  who  came  into 
his  custody  lawfully  beyond  the  time  at 
which,  according  to  the  practice  of  the 
court  as  regulated  by  statute,  (but  of  the 
applicability  of  whicii  to  the  plaintiff's 
case  it  was  not  averred  the  sheriff  had 
notice),  he  ought  to  have  been  detained. 
In  that  case  a  distinction  was  drawn  by 


166  smith'sleadingcases. 

Littledate,  J.,  between  cases  in  which  those  in  which  it  could  not  possibly  have 
the  excess  may  have  been  contemplated  been  so.  Smith  v.  Eggington,  7  A.  &, 
at  the   time  of  the  original   act,   and    E.  161. 


1.  The  first  of  the  three  points  above-mentioned,  that  the  abuse  of  an 
authority  given  by  law,  makes  the  party  a  trespasser  ab  initio,  is  confirmed 
in  Hazard  V.  Israel,  1  Binney,240;  Colby  v.  Jackson,  12  New  Hampshire, 
526.  533;  dicta  in  Wilt  v.  AVelsh,  6  Watts,  9.  13,  in  Van  Brunt  and 
another  v.  Schneck,  13  Johnson,  414,  and  in  Nelson  v.  Miriam,  4  Picker- 
ing, 249.  Any  irregularity  in  the  conduct  of  a  legal  agent,  whereby  any 
of  his  acts  are  without  the  pre-requisites  appointed  by  the  law — as,  if  cattle 
seized  damage-feasant,  are  impounded  without  previous  assessment  of 
damages,  or  goods  taken  under  warrant  of  distress  for  fines  incurred,  or  for 
duties,  are  sold  without,  or  after  too  brief,  an  advertisement,  or  goods  dis- 
trained for  rent  are  sold  without  appraisement  and  advertisement,  where, 
as  in  Pennsylvania,  the  statute  11  Geo.  2,  c.  19,  s.  19,  is  not  in  force — 
makes  a  trespasser  ab  initio;  Sackrider.v.  M'Donald,  10  Johnson,  253; 
Blake  v.  Johnson,  1  New  Hampshire,  91  ;  Purrington  v.  Loring,  7  Massa- 
chusetts, 388  ;  Kerr  and  another  v.  Sharp,  14  Sergeant  &  Rawie,  399  ; 
Barrett  v.  White  et  a.,  3  New  Hampshire,  210.  228.  A  sheriff" selling  the 
whole  interest,  in  goods  owned  by  two  jointly,  upon  an  execution  against 
one,  is  a  trespasser  ab  initio ;  Waddell  v.  Cook,  2  Hill's  N.  Y.  47. — It  is 
otherwise  where  the  authority  is  given  by  the  party ;  Allen  v.  Crofoot,  5 
Wendell,  506,  where  a  difl^erent  reason  is  given  from  that  in  the  principal 
case. 

2.  The  point  of  pleading,  mentioned  above,  is  confirmed  in  Hopkins  v. 
Hopkins,  10  Johnson,  369,  and  decided  to  be  applicable  also  to  replevin; 
in  that  case,  replevin  was  brought,  avowry  made,  and  the  abuse  specially 
replied  ;  it  was  held  that  the  original  taking  Avas  thereby  rendered  unlaw- 
ful, and  replevin  lay. 

3.  Mere  non-feasance  does  not  make  a  trespasser  ab  initio ;  Gardener  v. 
Campbell,  15  Johnson,  401;  GJates  v.  Lounsbury,  20  id.  427;  Hale  v. 
Clark,  18  Wendell,  498;  Bell  v.  North,  4  Littell,  133;  Waterbury  v, 
Lockwood,  4  Day,  257.  There  must  be  such  a  positive  act,  as  if  done 
without  authority  would  be  a  trespass ;  Shorland  v.Govett  5  B.  &  C.  485; 
Ferrin  v.  Symonds,  11  New  Hampshire,  363. 

The  principle  that  the  abuse  of  a  legal  authority  to  enter  renders  the 
original  entry  unlawful,  does  not  extend  to  criminal  law  ;  and  the  fact  that 
one  who  has  entered  an  inn  and  the  bar-room,  as  he  had  a  right  by  law  to 
do,  afterwards  commits  a  larceny  in  the  bar-room,  cannot  relate  back  so  as 
to  make  his  entry  into  the  house  criminal,  and  render  him  subject  to  an 
indictment  for  entering  the  house  with  intent  to  steal ;  The  State  v.  Moore, 
12  New  Hampshire,  42,  where  the  reason  of  the  rule  in  the  principal  case, 
is  said  to  be  the  policy  of  the  law  for  preventing  its  authority  being  turned 
into  an  instrument  of  oppression  and  injustice. 

H.  B.  W. 


LAMPLEIGir     V.     BRAT  H  WAIT.  167 


*LAMPLEIGII  V.   BEATHWAIT.  pG7] 


MICH.  13  JACOBI.— ROT,  712. 

[reported  hobart,  105.] 

A  mere  voluntary  Courtesy  will  not  uphold  an  Assumpsit ;  but  a  Courtesy  moved  by  a 
previous  request  will. — Labour,  thouirh  unsuccessful,  is  a  good  consideration. — Of 
Assumpsit  and  Considerations  generally. 

Anthony  Lampleigh  brought  an  assumpsit  against  Thomas  Brathwait, 
and  declared,  that  whereas  the  defendant  had  feloniously  slain  one  Patrick 
Mahumc  ;  the  defendant,  after  the  said  felony  done,  instantly  required  the 
plaintiff  to  labour,(«)  and  do  his  endeavour  to  obtain  his  pardon  from  the 
king,  whereupon  the  plaintiff,  upon  the  same  request,  did,  by  all  the  means 
he  could  and  many  days'  labour,  do  his  endeavour  to  obtain  the  king's 
pardon  for  the  said  felony,  viz.  in  riding  and  journeying  at  his  own  charo-es 
from  London  to  Roston,  when  the  king  was  there,  and  to  London  back,  and 
so  to  and  from  Newmarket,  to  obtain  pardon  for  the  defendant  for  the  said 
felony.  Afterwards,  sc.  &c,,  in  consideration  of  the  premises,  the  said 
defendant  did  promise  the  said  plaintifi'  to  give  him  100/.,  and  th^t  he  had 
not,  &c.  to  bis  damage  120/. 

To  this  the  defendant  pleaded  non-assumpsit,  and  found  for  the  plaintiff, 
damage  100/.  It  was  said  in  arrest  of  judgment,  that  the  consideration  was 
passed. 

But  the  chief  objection  was,  that  it  doth  not  appear  that  he  did  any  thino- 
towards  the  obtaining  of  the  pardon,  but  riding  up  and  down,  and  nothino- 
done  when  he  came  there.  And  of  this  opinion  was  my  brother  (Warbur- 
ton,)  but  myself  and  the  other  two  Judges  were  of  opinion  for  the  plaintil];(h 
and  so  he  had  judgment. 

First,  it  was  agreed,  that  a  mere  voluntary  courtesy  will  *not 
have  a  consideration  to  uphold  an  assumpsit.  But  if  that  courtesy  ["^^^  J 
were  moved  by  a  suit  or  request  of  the  party  that  gives  the  assumpsit,  it  will 
bind ;  for  the  promise,  though  it  follows,  yet  it  is  not  naked,  but  couples 
itself  with  the  suit  before,  and  the  merits  of  the  party  procured  by  that  suit, 
which  is  the  difference.  Pasch.  10  Eliz. ;  Dyer,  272  ;  Hunt  and  Bates! 
See  Oneley's  case,  19  Eliz.  ;  Dyer,  355. 

Then,  as  to  the  main  point,  it  is  first  clear,  that  in  this  case  upon  the  issue 
non  assumpsit,  all  these  points  are  to  be  proved  by  the  plaintiff: 

1.  That  the  defendant  had  committed  the  felony,  prout,  &c. 

2.  Then  that  he  requested  the  plaintiff's  endeavour,  prout,  &c. 

3.  That  thereupon  the  plaintiff  made  his  proof,  &c. 

4.  That  thereupon  the  defendant  made  his  promise,  prout,  &c. 

(a)  la  a  case  in  Espinasse,  this  consideration  was  held  illegal,  viz.  Norman  v  Col"  3 
Esp.  253.  "' 

(t)  See  1  Wras.Saund.  211,  c.  in  notis,     2  Wms.  Saund.  136,  in  notis. 


168  smith's    LEADING    CASES. 

For  wheresoever  I  build  my  promise  upon  a  thing  done  at  my  request, 
the  execution  of  the  act  must  pursue  the  request,  for  it  is  hke  a  case  of 
commission  for  this  purpose. 

So  then  the  issue  found  ut  supra  is  a  proof  that  he  did  his  endeavour 
according  to  the  request,  for  else  the  issue  could  not  have  been  found  ;  for 
that  is  the  difference  between  a  promise  upon  a  consideration  executed  and 
executory,  that  in  the  executed  you  cannot  traverse  the  consideration  by 
itself,  because -it  is  passed  and  incorporated  and  coupled  with  the  promise. (t) 
And  if  it  were  not  indeed  then  acted,  it  is  nudum  pactum. 

But  if  it  be  executor}^  as,  in  consideration  that  you  shall  serve  me  a  year, 
I  will  give  you  ten  pounds,  here  you  cannot  bring  your  action  till  the  service 
performed.  But  if  it  were  a  promise  on  either  side  executory,  it  needs  not 
to  aver  performance,  for  it  is  the  counter-promise,  and  not  the  performance, 
that  makes  the  consideration  :(J)  yet  it  is  a  promise  before,  though  not  bind- 
ing, and  in  the  action  you  shall  lay  the  promise  as  it  was,  and  make  special 
averment  of  the  service  done  after. 

Now  if  the  service  were  not  done,  and  yet  the  promise  made,  prout,  &c., 
the  defendant  must  not  traverse  the  promise,  but  he  must  traverse  the  per- 
formance of  the  service,  because  they  are  distinct  in  fact,  though  they  must 
concur  to  the  bearing  of  the  action. 

r  *fiQ  1  *Then  also  note  here,  that  it  was  neither  required,  nor  promised 
L  -"to  obtain  the  pardon,  but  to  do  his  endeavour  to  obtain  it ;  the  one 
was  his  end,  and  the  other  his  office. 

Now  then,  he  hath  laid  expressly,  in  general,  that  he  did  his  endeavour 
to  obtain  it,  viz.  in  equitando,  &c.,  to  obtain.  Now  then,  clearly,  the  sub- 
stance of  this  plea  is  general,  for  that  answers  directly  the  request,  the 
special  assigned  is  but  to  inform  the  court;  and  therefore  clearl)^  if,  upon 
the  trial,  he  could  have  proved  no  riding  nor  journeying  ;  yet  any  other 
effectual  endeavour  according  to  the  request  would  have  served  ;(§)  and 
therefore,  if  the  consideration  had  been,  that  he  should  endeavour  in  the 
future,  so  that  he  must  have  laid  his  endeavour  expressly,  and  had  done  it 
as  he  doth  here,  and  the  defendant  had  not  denied  the  promises,  but  the 
endeavour,  he  must  have  traversed  the  endeavour  in  the  general,  not  in  the 
riding,  &c.  in  the  special ;  which  proves  clearly,  that  is  not  the  substance, 
and  that  the  other  endeavour  would  serve.  This  makes  it  clear,  that  though 
particulars  ought  to  be  set  forth  to  the  court,  and  those  sufficient,  which 
were  not  done,  which  might  be  cause  of  demurrer;  yet  being  but  matter 
of  form,  and  the  substance  in  the  general,  which  is  herein  the  issue  and 
verdict,  it  were  cured  by  the  verdict ;  but  the  special  is  also  well  enough  ; 
for  all  is  laid  down  for  the  obtaining  of  the  pardon  which  is  within  the 
request ;  and  therefore,  suppose  he  had  ridden  to  that  purpose,  and 
Brathwait  had  died,  or  himself,  before  he  could  do  any  thing  else,  or 
that  another  had  obtained  the  pardon  before,  or  the  like,  yet  the  promise 
had  holden. 

And  observe  that  case,  22  E.  4,  40.  Condition  of  an  obligation,  to  show 
a  sufficient  discharge  of  an  annuity,  you  must  plead  the  certainly  of  the 

(!)  See  R.  H.  1834,  Passenger  v.  Brooks,  ]  Bing.  N.  C.  587. 

(t)  See  notes  to  Pordage  v.  Cole,  1  Wms.  Sannd.  320,  and  to  Peters  v.  Opie,  2  Wms. 
Saund.  352.  (§)  See  the  notes  to  Bristow  v.  Wright,  post. 


LAMPLEIGH    V.     BRATHWAIT. 


169 


discharge  to  the  court.(t)  The  reason  whereof,  given  by  Bnon  and  Choke, 
tthat  the  plea  there  contains  two  parts,  one  a  trial  per  pais,  sc.l.  the 
wdtt' of  the  discharge,  the  other  by  the  court,  scil.  the  sufficiency  and 
^aldUv  of  t,  which  the  jury  could  not  try,  for  they  agree,  that  if  the  con- 
dhb'  Ldb  n  to  build  a  house  agreeable  to  the  state  ^^  the  obligee,  because 
TZa  case  all  proper  for  the  country  to  try,  it  might  have  been  pleaded 
generally ;  and  then  it  was  a  demurrer,  not  in  issue,  as  is  here. 


^Whenever    the    considera- 
!^  *^^  ^  tion  of  a  promise  is  execulory, 
there  must  ex  necessitate  rei  have  heen  a 
request  on  the  part  of  the  person  promis- 
inp-    For  if  A.  promise  to  remunerate  B., 
in   consideration    that   B.  will  perform 
something  specified,  that  amounts  to  a 
request  to  B.  to  perform  the  act  for  which 
he  is  to  be  remunerated.     See  King  v. 
Sears,  2  C.  M.  &  R.  53.    5  Tyrwh.  587. 
The  only  difficulty  that  can  arise  m  such 
cases  is  on  the   question  which  some- 
times occurs  whether  the  consideration 
move  from  the  plaintiff :  as,  for  instance, 
if  A.  in  consideration  of  something  to  be 
done  by  B.,  were  to  promise  something 
to  C,  in  this  case,  C.  being  a  stranger 
to  the  consideration,  unless  he  in  some 
way  had   intervened  in  the  agreement 
between  A.  &  B.,  could  not  sustain  an 
action  on  tlie  promise.     See  Price  v. 
Easton,  4  B.  &  Adol.  433  ;  Osborne  v. 
Roo-ers,    1    Wms.    Saund.    264.      See 
Thomas  v.  Shillibeer,  1  Mee.  &  Welsh. 
126.     But   if  the    plaintiff  have   inter- 
vened in  the  agreement,  that  is   suffi- 
cient.    Tipper  v.  Biclinell,  3  Bingh.  N. 
C  710 ;  Webb  v.  Rhodes,  ib.  734.  And 
in   Lilly  v.  Hays,  5  A.  &  E.  549,  A. 
transmitted  money  to  B.  and  afterwards 
informed  him  that  it  was  for  C. :  B.  hav- 
ing assented  to  this,  and  C.  having  been 
informed  of  it,  it  was  held  that  C.  might 
maintain  assumpsit  for  money  had  and 
received  against  B.     See  also  Dutcli- 
man  v.  Tooth,  5  Bing.  N.  C.  577.   [The 
rule  seems  to  be,  that  where  the  third 
person  is  the  only  one  interested  in  the 
consideration,— as  where  one  pays  money 
to  another  for  the  use  of  the  third  person, 
or  having  money  of  another   promises 
him  to  pay  it  to  the  third,— here,  the 
third  person  has  the  right  of  action  :  but. 


if  the  contract,  though  to  bo  performed 
to  a  third  person,  is  tor  the  benefit  of  the 
promisee,  and  the  third  is  a  stranger  to 
the  consideration,— as,  where  the  pro- 
misee owes  the  third  person,  and  ano- 
tlier  promises  him  that  he  will  pay  that 
third  party,  here  the  promisee  alone  has 
the  right  of  action.     BIymire  v.  Boistle, 
G  Watts,  182,  where  the  subject  is  exa- 
mined with  great  ability  by  Sergeant, 
J. ;  confirmed  in  Morrison  v.  Berkey,  id. 
349,  and  in  Hubbcrt  v.  Borden  and  an- 
other,  6   Wliarton,    79.   94 ;    and    see 
Owings's  Ex'rs  v.  Owings,  1  Harris  & 
Gill,    485;    Carnegie    and   another   v. 
Morrison  and  another,  2  Metcalf,  381 ; 
Edmundson  v.  Penny,  1  Barr,  334  ;  Sailly 
v.  Cleveland,    10  Wendell,  156.    159; 
Treat  v.  Stanton,  14  Connecticut,  446. 
451.]  Where  the  consideration  is  execu- 
ted, unless  there  have  been  an  antecedent 
request,  no  action  is  maintainuble  upon 
the  promise  ;  for  a  request  must  be  laid 
in  the  declaration,  and  proved,  if  put  in 
issue,  at  the  trial.  Child  v.  Morley,  8  T. 
R.  610;  Stokes  v.  Lewis,  1  T.  R.  20; 
Naish  V.  Tatlock,  2  H.  Bl.  31S  ;  Hayes 
V    Warren,  2  Str.  933;  Richardson  v. 
Hall,  1  B.  &  B.  50;  Durnford  v.  Mes- 
siter,  5  M.  &  S.  446.    [S.  P.  Livingston 
V.  Rogers,  1  Caines,  584,  and  see  note 
to  edT  of  1S13  ;  Comstock  v.  Smith,  7 
Johnson,  87  ;  Parker  v.  Crane,  6  Wen- 
dell, 647.     But  see  the  note  of  Serjt. 
Manning  in  1  M.  &  G.  265,  in  vvhich 
this  is  shown  to  be  incorrect.     Where 
the  consideration  is  past,  it  is  unneces- 
sary to  allege   a  request,  "if  the   act 
stated  as  the  consideration  cannot  from 
its  nature,  have  been  a  gratuitous  kind- 
ness, but  imports  a  consideration    per 
se ;"  as  in  case  of  goods  sold,  or  money 
lent.     In  Victors  v.  Davis,  12  M.  &l  W. 


(t)  So  to  a  plea  of  nul  agard  in  an  action  on  a  bond  to  perform  an  award,  the  J-Pl'^^t^°" 
must  set  out  the  award  in  order  that  the  court  may  judge  of  its  sufficiency.  See  1  Wms. 
Saunders,  327,  n.  d. 


170 


smith's   leading  cases. 


758,  this  note  of  Serjt.  M.  is  pronounced 
by  Parke,  B.  to  be  "perfectly  correct;" 
and  it  is  decided  that  in  a  count  for  mo- 
ney lent,  a  request  need  not  be  alleged, 
because  the  statement  that  the  money 
was  lent,  implies  that  it  was  obtained  at 
the  request  of  the  defendant ;  and  Parke, 
B.  said  that  the  same  doctrine  will  apply 
to  money  paid,  because  no  man  can  be  a 
debtor  for  money  paid,  unless  it  is  paid 
at  his  request.]  iSee  Reg.  Gen.  Hil.  1S32, 
pi.  8.  For  a  mere  voluntary  courtesy 
is  not  sutficient  to  support  a  subsequent 
promise  ;  but  when  there  was  previous 
request,  the  courtesy  was  not  merely 
voluntary,  nor  is  the  promise  nuduui 
pactum,  but  couples  itself  with,  and 
relates  back  to,  the  previous  request, 
and  the  merits  of  the  party  which  were 
procured  by  that  request,  and  is  there- 
fore on  a  gootl  consideration.  See  Pawle 
V.  Gunn,  4  Bing.  N.  C.  448.  Such  a 
request  may  be  either  express  or  implied. 
If  it  have  not  been  made  in  express 
terms,  it  will  be  implied  under  the  fol- 
lowing circumstances  : — First,  Where 
the  consitieralion  consists  in  the  plain- 
tiff's having  been  compelled  to  do  thai 
to  which  the  defendant  was  legally  com- 
pellable. Jeffreys  v.  Gurr,  2  B.  &  Ad. 
833  ;  Pownall  v.  Ferrand,  0  B.  &  C. 
439;  Exall  v.  Partridge,  8  T.  R.  303; 
Toussaint  v.  Martiunant,  2  T.  R.  100 ; 
Grissel  v.  Robinson,  3  Bingh.  N.  C.  13. 
Secondly,  Where  the  defendant  has 
adopted  and  enjoyed  the  benefit  of  the 
consideration,  for  in  that  case  the  ma.xiVn 
applies  omnis  ratihibitio  retrotrahilur  et 
mandato  sequiparatur.  Vide  Paw-le  v. 
Gunn,  4  Bingh.  N.  C.  448.]  S.  P.  Doty 
V.  Wilson,  14  Johnson,  378.]  Thirdly, 
Where  the  Yi^VLmi\S voluntarily  does  that 
whereunto  the  defendant  was  legally 
compellable,  and  the  defendant  after- 
wards, in  consideration  thereof,  expressly 
promises.  Wennall  v.  Adney,  3  B.  & 
P.  250,  in  notis;  Wing  v.  Mill,  1  B.  & 
A.  104;  S.  N.  P.  8  ed.  p.  57,  n.  11 ; 
Paynter  v.  Williams,  1  C.  &  M.  818. 
But  it  must  be  observed  that  there  is 
this  distinction  between  this  and  the  two 
former  cases,  viz.  that  in  each  of  the 
two  former  cases  the  law  will  imply  the 
promise  as  well  as  the  request,  whereas 
in  this  and  the  following  case  the  pro- 
mise is  not  implied,  and  the  request  is 
only  then  implied  when  there  has  been 
an  express  promise.  Atkins  v.  Banwell, 
2  East,  505.  [Without  a  ratification  of 
the  payment,  one  who  pays  the  debt  of 
another  without  his  request,  cannot  re- 


cover compensation  ;  Winsor  v.  Savage, 
9  Metcalf,  347,  348.]  Fourthly,  In  cer- 
tain cases,  where  the  plaintiff  i'o/«?i/ari7y 
does  that  to  which  the  defendant  is 
morally,  though  not  legally,  compella- 
ble, and  the  defendant  afterwards,  in 
consideration  thereof,  expressly  pro- 
mises. See  Lee  v.  Mnggeridge,  o 
Taunt.  36;  Watson  v.  Turner,  B.  N. 
P.  129.  147.  281.  Trueman  v.  Fenton, 
Cowp.  544.  Atkins  v.  Banwell,  2  East, 
505.  [See  Force  v.  Haines,  2  Harrison, 
3S.5.]  B;it  every  moral  obligation  is  not 
perhaps  sufficient  for  this  purpose.  See 
per  Lord  Tenterden,  C.  J.,  in  Littlefield 
V.  Shee,  2  B.  &  Adol.  811.  [See  East- 
wood V,  Kenyon,  11  A.  tSz,  E.  438  ;  Ros- 
corla  V.  Thomas,  3  Q.  B.  234  ;  Mdls  v. 
Wyman,  3  Pickering,  207  ;  Valentine 
V.  Foster,  1  Metcalf,  521 ;  Dearborn 
and  another  v.  Bowman,  3  id.  155  :  Ehle 
V.  Judson,  24  Wendell,  97;  Slaftbrd  v. 
Bacon,  1  Hill's  New  York,  .533,  and  25 
Wendell,  384,  and  2  Hill's  New  York, 
353,  for  the  final  opinions  of  the  court ; 
Snevily  v.  Reed,  9  Watts,  396 ;  Ken- 
nedy's Ex'ors  V.  Ware,  1  Barr,  445. 
451.] 

Whether  a  father  impliedly  under- 
takes to  repay  any  person  supporting 
his  child  whom  he  deserts.  Dubitatur, 
Urnrston  v.  Ne.vcoman,  4  A.  &  Ell.  899. 

Upon  the  question  wMiat  will  amount 
to  evidence  of  a  request  where  it  is 
necessary  to  prove  one,  see  Alexander 
V.  Vane,  1  Mee.  &,  Welsh.  513.  There 
A.  and  B.  went  to  C.'s  shop  ;  A.  ordered 
goods,  and  B.  said  in  A.'s  presence  that 
he  would  pay  for  them  if  A.  did  not. 
This  was  held  evidence  of  a  request 
from  A.  to  B.  to  pay  for  them  in  case  of 
his  own  default. 

One  of  the  most  singular,  perhaps  the 
most  singular  case  determined  on  the 
gi'ound  of  nudum  pactum,  is  Hopkins  v. 
Logan,  5  M.  &.  W.  247,  where  it  was 
held  that  an  account  stated,  and  a  sum 
thereupon  found  to  be  due  to  the  plain- 
tiff, will  not  support  a  promise  to  pay 
such  sum  in  futuro,  though  the  law 
would  imply  a  promise  to  pay  it  in  prse- 
senti.  [It  proceeded  upon  the  gene- 
ral principle,  that  a  consideration  past 
and  executed  will  support  no  other  pro- 
mise (even  express)  than  such  as  would 
be  implied  by  law.  In  a  recent  case  it 
was  decided  by  the  Queen's  Bench,  that 
a  declaration  alleging  that  in  considera- 
tion that  the  plaintiff  Aa<Z  bought  a  horse 
from  the  defendant  at  his  request,  the  I 
defendant  promised  that  the  horse  was 


LAMPLEIGH    V.     BRATHWAIT. 


171 


free  from  vice,  was  bad  in  arrest  of  judg- 
ment ;  and  Lord  Denman,  C.  J.,  said  that 
the  cases  in  which  it  has  been  held  that, 
under  certain  circumstances,  a  consider- 
ation insufficient  to  raise  an  implied  pro- 
mise will  nevertheless  support  an  ex- 
press one,  are  cases  of  voidable  contracts 
subsequently  ratified,  of  debts  barred  by 
operation  of  law,  subsequently  revived, 
and  of  equitable  and  moral  obligations, 
which,  but  for  some  rule  of  law,  would 
of  themselves  have  been  sufficient  to 
raise  an  implied  promise  ;  Roscorla  v. 
Thomas,  3  Q.  B.  234.  See  Thornton  v. 
Jenyns,  1  M.  &  Gr.  166.  188,  and  Kaye 
V.  Dutton,  7  Id.  807,  the  latter  of  which 
suggests  a  qualification  of  the  doctrine 
of  Roscorla  v.  Thomas.] 

It  is  perhaps  upon  the  principle  that 
a  gift  while  executory  is  nudum  pactum, 
and  therefore  incapable  of  being  enfor- 
ced, that  a  parol  gift  of  chattels  is  held 
to  pass  no  property  to  the  donee  without 
delivery.  Irons  v.  Smallpiece,  5  B.  &  A. 
It  has  been  above  staled  that  one  of 
the  cases  in  which  an  express  request 
is  unnece.~sary,  and  in  which  a  promise 
will  be  implied,  is  that  in  which  the 
plaintiff'  has  been  cotnpelled  to  do  that 
to  which  the  defendant  was  legally  com- 
.pellable.  On  this  principle  depends  the 
right  of  a  surety  who  has  been  damnified 
to  recover  an  indemnity  from  his  prin- 
cipal. Touissaint  v.  Martinnant,  2  T.  R. 
100;  Fisher  v.  Fellows,  5  Esp.  171. 
[S.  P.  Appleton  and  another  v.  I3ascom 
and  another,  3  Metcalf  169.]  Thus, 
the  indorser  of  a  bill  who  has  been 
sued  by  the  holder,  and  has  paid  part  of 
the  amount,  being  a  surety  for  the  accep- 
tor, may  recover  it  back  as  money  paid 
to  his  use  and  at  his  request.  Pownall 
v.  Ferrand,  6  B.  &  C.  439.  But  then 
the  surety  must  have  been  compelled,  i. 
e.  he  must  have  been  under  a  reasonable 
obligation  and  necessity,  to  pay  what  he 
seeks  to  recover  from  his  principal  ;  for 
if  he  improperly  defend  an  action  and 
incur  costs,  there  \*ill  be  no  implied 
duty  on  the  part  of  his  principal  to  reim- 
burse him  those,  unless  the  action  was 
defended  at  the  principal's  request. 
Roach  V.  Thompson,  1  M.  &.  M.  487. 
See  4  C.  &  P.  194;  Gillelt  v.  Rippon, 
1  M.  &,  M.  406;  Knight  v.  Hughes,  1 
M.  Si.  M.  247  ;  Smith  v.  Ccmpton,  3  B. 
&  Ad.  407.  But  if  he  make  a  reason- 
able and  prudent  compromise,  he  will 
be  justified  in  doing  so.  Smith  v.  Comp- 
Hon.  However,  it  is  always  advisable 
for  the  surety  to  let  his  principal  know 


when  he  is  threatened,  and  request  direc- 
tions from  him  ;  for  the  *ru]e  r  :^~,  -, 
laid  down  by  the  King's  Bench  '-  ■' 
in  Smith  v.  Compton  is,  that  "  the  effect 
of  want  of  notice  (to  the  principal,)  is  to 
let  in  the  party  who  is  called  upon  for 
an  indemnity,  to  show  that  the  plaintiff 
has  no  claim  in  respect  of  the  alleged 
loss,  or  not  to  the  amount  alleged  ;  that 
he  made  an  improvident  bargain,  and 
that  the  defendant  might  have  obtained 
better  terms  if  an  opportunity  had  been 

given  him The  effect  of 

notice  loan  indemnifying  party  is  stated 
by  Buller,  J.,  in  Duflield  v.  Scott,  3  T. 
R.  374.  The  purpose  of  giving  notice 
is  not  in  order  to  give  a  ground  of  action  ; 
but  if  a  demand  be  made  which  the  party 
indemnifying  is  bound  to  pay,  and  notice 
be  given  to  him,  and  he  refuse  to  defend 
the  action,  in  consequence  of  which  the 
person  indemnified  is  obliged  to  pay  the 
demand,  that  is  equivalent  to  a  judgment, 
and  estops  the  other  party  from  saying 
that  the  defendant  in  the  first  action 
was  not  bound  to  pay  the  money."  On 
the  same  ground  as  the  liability  of  a 
principal  to  reimburse  his  surety,  depends 
the  right  of  one  surely  or  joint  contrac- 
tor who  has  been  obliged  to  satisfy  the 
whole  demand,  to  recover  a  proportion- 
able contribution  from  his  fellow  surety 
or  contractor.  He  is  a  person  who  has 
been  compelled  to  'satisfy  a  demand, 
parcel  of  which  his  fellow  was  compel- 
lable  to  satisfy  :  Cowell  v.  Edwards,  2 

B.  &  P.  263 ;  Turner  v.  Davies,  2  Esp. 
478;  Browne  v.  Lee,  6  B.  &,  C.  697; 
Deering  v.  Winchelsea,  2  B.  &.  P.  270  ; 
[Kemp  v.  Finden,  12  M.  &  VV.  421 ; 
though,  indeed,  if  one  have  become 
surety  at  the  instance  of  the  other,  par- 
ticularly if  that  other  have  received 
from  the  principal  a  separate  indemnity 
for  himself,  it  will  be  different.  Turner 
v.  Davies  ;  see  Thomas  v.  Cook,  8  B.  &, 

C.  728.  [And  a  surely  who  pays  with- 
out suit,  after  the  liability  has  become 
fixed,  may  recover  contribution  from  his 
co-surety  ;  Pitt  v.  Purssord,  8  M,'  &  W. 
538.]  The  right  to  reimbursement  from 
the  principal  accrues,  toties  quoties, 
as  often  as  the  surely  is  compelled  to 
make  a  payment ;  that  to  contribution 
from  a  co-surety  does  not  accrue  till  it 
is  ascertained  that  one  surety  has  paid 
more  than  his  portion  of  the  whole  debt, 
after  which  it  accrues  toties  quoties  on 
the  occasion  of  each  payment  that  he  is 
subsequently  forced  to  make,  Davies  v. 
Humphreys,  6  M.  &.  W.  108.     See,  as 


172 


SMITHS     LEADING     CASES. 


to  the  right  of  a  joint  contractor  to  con- 
tribution, Lord  Kenyon's  judgment  in 
Merrywether  v.  Nixan,  8  T.  R.  186, 
and  post,  vol.  2;  Abbot  v.  Smith,  2  Bl. 
947;  Hutton  v.  Eyre,  6  Taunt.  289; 
Bayne  v.  Stone,  4  Esp.  18  ;  Burnell  v. 
Minot,  4  Moore,  340 ;  Holmes  v.  Wil- 
liamson, 6  M.  &  S.  158.  It  is  otherwise 
indeed  where  the  joint  contractors  are 
partners,  for  then  justice  could  not  be 
done  between  them  without  balancing 
the  partnership  accounts,  which  is  the 
office  of  a  court  of  equity  ;  Sadler  v. 
Nixon,  5  B.  &  Ad.  936;  unless  the 
partnership  was  merely  in  an  isolated 
transaction  ;  see  Wilson  v.  Cutting,  10 
Bing.  436 ;  [or  there  were  a  contract, 
express  or  implied,  independent  of  the 
partnership ;  Edger  v.  Knapp,  5  M.  &l 
Gr.  753.]  But  no  action  for  contribu- 
tion is  maintainable  by  one  wrong-doer 
against  another,  although  the  one  who 
claims  contribution  may  have  been  com- 
pelled to  satisfy  the  whole  damages  aris- 
ing from  the  tort  committed  by  them 
both.  This  was  decided  in  Merrywether 
V.  Nixan,  8  T.  R.  166.  There,  Starkey, 
having  brought  an  action  on  the  case 
against  Merrywether  and  Nixan  for  an 
injury  done  by  them  to  his  reversion, 
levied  the  whole  damages,  amounting  to 
840Z.,  upon  Merrywether,  whothereupon 
sued  Nixan  for  a  contribution :  the  plain- 
tiff was  nonsuited  on  the  ground  that 
such  an  action  lay  not  between  wronor. 
doers ;  and  the  court  afterwards  held 
the  nonsuit  proper.  Lord  Kenyon,  in 
his  judgment,  having  laid  down  the  gen- 
eral principle,  observed,  that  "the  deci- 
sion would  not  affect  cases  of  indemnity 
where  one  man  employed  another  to  do 
acts  not  unlawful  in  themselves,  for  the 
purpose  of  asserting  a  right."  "  From 
the  inclination  of  the  court,  in  Phillips 
V.  Biggs,  Hard.  164,  from  tlie  conclud- 
ing part  of  Lord  Kenyon's  judgment  in 
Merrywether  v.  Nixan,  and  from  reason, 
justice,  and  sound  policy,  the  rule  that 
wrong-doers  cannot  have  contribution 
against  each  other,  is  confined  to  cases 
where  the  person  seeking  redress  must 
be  presumed  to  have  known  that  he  was 
doing  an  unlawful  act."  Per  Best,  C. 
J.,  in  Adamson  v.  Jervis,  4  Bing.  72. 
Accordingly  in  Betts  v.  Gibbons,  2  Adol. 
&  Ell.  57,  such  an  action  was  held  to  be 
maintainable.  There,  the  defendant  con- 
signed to  the  plaintiffs  ten  casks  of  ace- 
tale  of  lime,  for  Nyren  and  Wilson,  tvvo 
of  which  were  delivered,  but  the  remain- 
ing eight  continued  in  the   plaintiffs' 


hands  up  to  the  time  of  Nyren  and  Wil- 
son's bankruptcy,  on  which  the  plaintiffs, 
by  the  defendants'  orders,  refused  to  de- 
liver them  to  the  assignees,  who  brought 
an  action  of  trover,  which  the  plaintiffs 
compromised  by  paying  the  value  of 
the  casks,  together  with  the  costs,  and 
brought  this  action  against  the  defen- 
dants for  indemnity.  They  were  held  to 
be  entitled  to  recover.  *"  Th is  r  :j.,y2  i 
principle  laid  down  in  .Merry-  '-  ■' 
wether  v.  Nixan,"  said  Taunton,  J.,  is 
"  too  plain  to  be  mistaken.  The  law 
will  not  imply  an  indemnity  betioeen 
tvrong-doers.  But  the  case  is  altered 
where,  the  matter  is  indifferent  hi  itself, 
and  when  it  turns  upon  circumstances 
whether  the  act  be  wrong  or  not.  The 
act  done  here,  by  changing  the  destina- 
tion of  the  goods  at  the  order  of  the 
defendant,  was  not  clearly  illegal ;  and, 
therefore,  not  within  the  rule  in  Merry- 
wether V.  Nixan  ;"  accord.  Humphreys 
V.  Pratt,  2  Dow.  &  CI.  288;  Pearson  v. 
Skelton,  1  M.  &  Welsh.  504  ;  Fletcher 
V.  Harcot,  Hutt,  55,  S.  C.  as  Battersey's 
case,  Winch.  43.  Li  Colbourn  v.  Pat-' 
more,  4  Tyrwh.  677,  1  C.  M.  &  Ros. 
73,  the  proprietor  of  a  newspaper  sued 
his  editor  for  falsely,  maliciously,  and 
negligently  inserting  a  libel  therein, 
without  the  knowledge,  leave,  or  autho- 
rity of  the  plaintiff,  "  in  consequence  of 
which  the  plaintiff  was  convicted  and. 
fined  for  falsely  and  maliciously  ^rinf- 
ing  and  publishing  the  said  libel."  The 
case  was  determined  against  the  plain- 
tiff on  a  slip  in  the  pleading,  the  court 
being  of  opinion,  that  it  was  consistent 
with  the  statement  in  the  declaration, 
that  the  plaintiff,  though  he  did  not 
know  of  the  original  insertion  of  the 
libel,  might  afterwards  have  knowingly 
and  wilfully  permitted  it  to  be  printed, 
and  so  have  been  convicted  in  conse- 
quence of  his  own  criminal  act,  and  not 
of  that  of  the  defendant.  But,  during 
the  argument,  the  question,  whether  a 
newspaper  proprietor,  convicted  and  fin- 
ed in  consequence  of  the  publication 
of  a  libel  by  his  editor  without  his  know- 
ledge or  consent,  could  maintain  an 
action  for  indemnity,  was  elaborately  dis- 
cussed at  the  bar,  and  the  court  in  deli- 
vering judgment  expressed  a  strong 
opinion  that  he  could  not.  "  I  aui  not 
aware,"  said  Lord  Lyndhurst,  C.  B.,  "  of 
any  case  in  which  a  man  convicted  of 
an  act  declared  by  law  to  be  criminal, 
and  punished  for  it  accordingly,  has  been* 
suffered  to  maintain  an  action  against 


LAMPLEIGH     V.     BRATHWAIT. 


173 


the  party  who  participated  with  him 
in  the  offence,  in  order  to  procure  indem- 
nity for  the  damages  occasioned  by  that 
conviction  ;  but  after  hearing  the  argu- 
ment, I  entertain  little  or  no  doubt  that 
such  an  action  could  not  be  maintained." 
(See  Shackell  v.  Rosier,  2  Bing.  N.  C. 
634.) 

Perhaps  this  case  may  be  thought  to 
involve  considerable  hardship.  The  pro- 
prietor of  a  newspaper  is,  for  the  security 
of  the  public,  rendered  the  single  excep- 
tion to  that  otherwise  universal  rule  of 
law,  that  a  master  shall  not  be  criminally 
responsible  for  the  act  of  his  servant, 
done  without  his  knowledge  or  authority. 
See  Rex  v.  Gutch,  M.  &  M.  433.  His 
liability  to  the  indictment  is,  as  Lord 
Lyndhurst  expressed  it,  "  an  anomaly." 
Admitting  that  it  would  also  be  an  ano- 
maly, that  a  man  convicted  of  a  crime 
should  recover  indemnity:  still,  if  one 
anomaly  be  permitted  in  the  law  in  order 
to  convict  him,  may  not  another  anomaly 
be  introduced  in  order  to  indemnify  him  ? 
It  is  hard  to  consider  the  case  anomalous 
as  against  the  proprietor,  and  to  refuse 
to  treat  it  as  such  in  his  favour.  If  there 
be  one  case  only  in  which  a  man,  morally 
innocent,  may  be  convicted  of  a  crime, 
should  there  not  be  a  corresponding  ex- 
ception to  the  rule  which  debars  persons 
so  convicted  from  indemnity?  It  has 
been  said  that  his  liabiljty  to  the  indict- 
ment proceeds  upon  the*  ground  that  the 
law  presumes  him  to  be  cognizant  of  the 
libel.  In  presumptione  juris  consistit 
Eequitas.  But  what  equity  is  there  in 
continuing  such  a  presumption  after  its 
object,  namely,  the  protection  of  the 
public,  has  been  satisfied]  And  that, 
too,  when  the  effect  of  doing  so  is  to 
exempt  the  person  morally  guilty  from 
punishment,  at  the  expense  of  the  person 
morally  innocent,  for  the  defendant  in 
the  action  for  indemnity  must  always  be 
one  who  has  published  the  libel  know- 
ingly, wilfully,  and  without  the  know- 
ledge or  consent  of  the  proprietor. 

Under  the  same  principle,  viz.  that  a 
previous  request,  and  a  promise  to  in- 
demnify, will  be  implied,  in  favour  of  a 
plaintiff,  who  has  been  compelled  to  do 
that  to  which  the  defendant  was  legally 
compellable,  may  be  ranked  the  cases  in 
which  a  tenant,  who  has  been  forced  to 
pay  some  demand  to  which  the  landlord 
was  primarily  liable,  has  been  held  enti- 
tled to  deduct  the  amount  from  his  rent, 
or  to  recover  it  again  from  the  landlord, 
as  money  paid  to  his  use.     Such  was 


Taylor  v.  Zamira,  6  Taunt.  524 ;  that 
was  an  action  of  replevin,  in  which 
*the  defendant  made  cogniz-  |-^-,g . 
zance  as  bailiff  of  Carpue  for  8Z.  •-  -' 
I5s.,  being  a  quarter's  rent,  under  a 
demise  at  35/.  per  annum.  The  plain- 
tiff pleaded  in  bar,  that,  before  that 
demise,  Ridout  and  Tothill  were  seised 
each  of  an  undivided  fourth  part  of  the 
premises,  and  severally  demised  the 
same  for  terms  of  99  years  to  S.  S.  Still  ; 
who  assigned  them  to  Tucker ;  who, 
before  the  demise  by  Carpue,  and  before 
that  person  had  any  interest  in  the  pre- 
mises, granted  an  annuity  of  102/.  16s. 
per  annum,  issuing  out  of  the  said  two 
undivided  fourth  parts,  to  Mary  Knowles, 
with  power  of  distress;  that  afterwards, 
and  before  the  time  when,  &c.,  a  sum  ex- 
ceeding the  arrears  mentioned  in  the 
cognizance,  viz.  205/.  12s., fell  due  to  M. 
Knowles,  who  demanded  payment  from 
the  plaintiff,  and  threatened  to  distrain 
on  hmi ;  whereupon,  in  order  to  prevent 
his  goods  from  being  distrained,  the 
plaintiff  paid  8/.  15s.  (the  rent  mention- 
ed in  the  cognizance)  in  part  payment 
of  the  annuity.  The  plea  was  held 
good :  Gibbs,  C.  J.,  remarkmg,  that 
Sapsford  v.  Fletcher,  4  T.  R.  51 1,  was 
decisive  that  a  tenant,  threatened  with 
distress  for  rent  due  to  a  superior  land- 
lord, might  pay  it,  and  deduct  the  pay- 
ment from  his  own  rent;  tliat  the  only 
difference  was,  that  there  his  immediate 
lessor  was  personally  liable  to  that  rent, 
and  that  here  the  land  only  was  liable, 
but  that  nothing  could  turn  on  that  dis- 
tinction. And  Burrough,  J.,  said,  that, 
had  the  payment  by  the  plaintiff  exceed- 
ed the  rent  due  from  him,  he  might 
have  brought  assumpsit  against  defen- 
dant for  the  surplus.  In  Sapsford  v. 
Fletcher,  4  T.  R.  511,  above  referred  to, 
tenant,  to  an  avowry  for  rent  arrear, 
pleaded  a  payment,  under  threat  of  dis- 
tress, of  ground-rent  to  the  superior 
landlord.  It  was  urged,  1st,  that  this 
amounted  to  a  set-off,  and  was  not  plead- 
able in  replevin ;  2nd,  that  this  was  a 
payment  by  the  tenant  in  his  own  wrong, 
for  that  no  man  can  make  another  his 
debtor,  by  voluntarily  paying  the  debt 
of  that  other.  But  the  court  said,  it  was 
not  a  set-off,  but  a  payment ;  and  that 
the  payment  was  not  voluntary,  but  com- 
pulsory, for  it  was  made  under  threat 
of  distress,  which  the  superior  landlord 
had  it  in  his  power  to  levy.  Nor  is  it 
necessary,  for  the  purpose  of  rendering 
the  payment  one  by  compulsion,  that  the 


174 


SMITHS     LEADING     CASES. 


superior  lord  should  actually  threaten  to 
distrain  ;  for  a  demand  by  one  who  has 
power  to  distrain  is.  equivalent  to  a 
threat  of  distress  ;  and  sucli  a  payment, 
to  use  the  words  of  Best,  C.  J.,  is  no 
more  voluntary  than  a  donation  to  a 
begg-ar  who  presents  a  pistol.  Carter 
V.  Carter,  5  Bing.  406.  It  was  stated, 
as  has  been  already  observed  by  Bur- 
rough,- J.,  in  Taylor  v.  Zamira,  that  if 
the  payment  made  by  the  tenant  to  the 
head  landlord  had  exceeded  the  sum  due 
from  him  to  his  lessor,  he  might  have 
sued  his  lessor  in  assumpsit  for  the  sur- 
plus. This  is  a  corollary  from  the  gen- 
eral rule  we  are  discussing,  viz.  that  if 

A.  be  compelled  to  pay  the  debt  which 

B.  is   legally  compellable  to  satisfy,  A. 
may  sue  B.  for  the  amount,  and  the  law 
implies  a  previous  request  from  B.  to  A., 
to  pay  the  debt,  and  a  subsequent  pro- 
mise   to   reimburse    him.     Indeed,    in 
Schlencher  v.  Moxey,  3  B.  &  C.  789, 
where  a  lessee  by  deed,  who  had  been 
distrained  upon  for  ground-rent,  declared 
aginst  his  lessor,  on  an  implied  promise 
to  indemnify,  it  was  held  that  the  cove- 
nant for  .quiet  enjoyment  by  the  word 
demise  excluded  such  an   implication. 
Had  he  sued  not  on  a  contract  contem- 
poraneous with  the  lea.se,  but  for  money 
paid,  the  result  might  have  been  differ- 
ent.    Ill   Moore  v.'Pyrke,  11  East,  53, 
the  general  principle  was  not  disputed  ; 
but  the  action  failed,  because  the  plain- 
tiff, instead  of  paying  the   rent  to  the 
superior  landlord,  had  suffered  his  goods 
to  be  distrained  and  sold,  so  that,  in  fact, 
he  never  had  paid   any  money  to  the 
defendant's  (his  lessor's)  use  ;    and,   as 
the  declaration  was  for  money  paid,  he 
failed.     But  in  Exall  v.  Partridge  and 
others,  8  T.  R.  308,  the  plaintiff,  a  stran- 
ger,  placed    his   carriage  on   premises 
which   the   defendant  and    two   others 
rented  from  Welch  for  a  term  of  years; 
the  other  two  had  transferred  their  inte- 
rest to  their  co-lessee  ;  but  there  was  a 
covenant  by  all  three  to  pay  rent,  so 
that  all  continued  liable  to  Welch,  the 
head  landlord.    Welch  having  distrained 
the  carriage  for  rent,  the  plaintiff  paid 
the  arrears,   in  order  to  release  it,  and 
was  allowed  to  recover  the  amount  from 
the  defendants  in  an  action  of  assumpsit 
r  ^IX  1  *^°^    money    paid.     "  One    per- 
'■         ^  son,"  said  Lawrence,  J.,  in  his 
judgment  in  that  case,  "  cannot  by  a  vol- 
untary  payment    raise    an     assumpsit 
against  another ;  but  here  was  a  distress 
for  rent  due  from  the  three  defendants, 


the  notice  of  distress  expressed  the  rent 
to  be  due  yVom  them  all,  the  money  was 
paid  by  the  plaintiff  in  satisfaction  of  a 
demand  on  all,  and  it  was  paid  by  com- 
pulsion;  therefore,  I  am  of  opinion  that 
this  action  may  be  maintained  against 
the  three  defendants.  The  justice  of 
the  case,  indeed,  is  that  the  one  who 
must  ultimately  pay  this  money  should 
alone  be  answerable  here.  But  as  all 
three. defendants  were  liable  to  the  land- 
lord for  rent  in  the  first  instance,  and 
as  by  this  payment  made  by  the  plain- 
tiff, all  the  three  were  released  from  the 
demand  of  rent,  I  think  that  this  action 
may  be  supported  against  all  of  them." 
[See  Boodle  v.  Cambell,  7  M.  &Gr.  386; 
and  Hunter  v.  Hunt,  1  C.  B.  300.] 

The    above    words    are     printed    in 
italics,  because  there  is    a  distinction 
between  this  case  and  the  case  where 
one  person  is  compelled  to  make  a  pay- 
ment, to  which  another  is  liable,   not, 
however,  primarily,  but  only  in  conse- 
quence of  a  special  agreement  with  the 
party   who   is   forced  to   make  it;  the 
remedy  in  such  case  not  being  on  any 
implied   assumpsit,  but  on  the  special 
agreement   itself;  thus    in    Spencer  v. 
Parry,  3  Adol.    &  Ell.  331,  the  defend- 
ant took  a  house  from  the  plaintiff,  and 
agreed  to  pay  certain  taxes,  which  were 
by  statute  payable  by  the  landlord.   The 
plaintiff,  having  been  compelled  to  pay 
these  taxes  in  consequence  of  tiie  defen- 
dant's default,  brought  an  action  of  debt 
for  money   paid    against   him.     It  was 
objected  that   he   ought  to  have   sued 
upon  the  special   agreement,   and   the 
court  held  the  objection   fatal.     "The 
plaintiff's  payment,"  said  the  Lord  Chief 
Justice,   delivering    judgment,  "deliv- 
ered  the    defendant  from   no   liability 
but  what   arose  from    the  contract  be- 
tween them,  the  tax  remained  due  by 
his  default,  which  would  give  a  remedy 
on  the  agreement,  but  it  was  paid  to  one 
who  had  no  claim  upon  him,  and  there- 
fore not  to  his  use."     Accord.  Lubbock 
V.  Tribe,   3  M.  &  Welsh.   607,   which 
was  decided  on  the  authority  of  Spencer 
V.  Parry  ;  [and  see  Kemp  v.  Finden,  12 
M.  &  W.  421  ;  and  Thurnell  v.  Sym- 
onds,  1 C.  &.  K.  44.]  In  Lubbock  v.  Tribe, 
the  defendant  gave  a  cheque  for  money 
due  from  him  to  the  K.  Co.;  the  plaintiffs 
received  it  as  the  company's  agents  ;  it 
was  afterwards  lost,  and    the  plaintiffs 
agreed  with  the  defendant  that  he  should 
give  them  a  new  cheque  on  their  giving 
him  an  indemnity.    No  new  cheque  was 


LAMPLEIGH     V.     BRATHWAITE. 


175 


given  :  but   the   plaintiffs  having  been 
obliged  to  pay  ihe  amount  to  the  com- 
pany, brought  an  action  against  the  de- 
fendant/or money  paid,  which  was  held 
not  to  be  sustainable.     "  On  the  special 
agreement,"  said  Parke,  B.,  "  1  think  an 
action  miglit  be  maintained,  but  not  for 
money  paid,  because  the  payment  of  the 
money  does  not  exonerate  the  defendant 
from  any  liability  at  all.    It  is  not  money 
paid  to  his  use,  it  is  money  paid  to  the 
plaintiffs'  own  use,   who  are  bound  to 
make  good  the  amount  to  the  K.  Com- 
pany."   But  in  a  previous  case,  in  which 
the  compulsory  payment  was  made  in 
discharge  of  a  party,  who,   though   not 
primarily  liable  was  ultimately  so,  not 
by  any  special    agreement,  but    by  the 
provisions  of  an  act  of  parliament,  it  was 
decided,    that   tlie  party    compelled    to 
make  the  payment  might  recover  on  an 
implied   assumpsit.     In  Dawson  v.  Lin- 
ton, 5  B.  &  A.  521,  goods  of  the  plain- 
tiff, an  outgoing  tenant,   left  by  him  on 
his  farm,  were  distrained  for  a  tax  pay- 
able by  the  tenant,   but  which  the  act 
gave  him  power  to  deduct  from  his  rent  : 
the  court  decided,  that,  as  the  tax  must 
ultimately  fall  on  the  landlord,  and  as 
the  plaintiff  had  been  compelled  to  pay 
it  in  order  to  ransom   his  goods,  he  had 
a  right  to  recover  the  amount  from  the 
landlord,  as  money  paid  to  his  use.     It 
may,  perhaps,  be  thought,  that  the  pay- 
ment in  this  case  is  liable  to  the  con- 
cluding  observation    of    the    court    in 
Spencer  v.  Parry,  that  "  it  was  made  to 
one  who  had  no  claim  upon  the  defend- 
ant, and  therefore  not  to  his  use^     But 
though,  in  Dawson  v.  Linton,  there  was 
no  claim  for  the  ta.x  against  the  defend- 
ant    personally,    there    was    a     claim 
against  the  land  which  was  his  property ; 
nay,  there  was  one   contingency,   viz., 
that  of  there  being  no  sufficient  distress, 
in  which  the  act  provided  that  the  land 
itself  might  be  seized  quousque  for  the 
arrears  due;  and  Taylor  v.  Zamira  shows 
that  a  claim  against  a  man's  property  is 
equivalent,    for    this    purpose,    to    one 
against  his  person  ;  but,  in  Spencer  v. 
Parry,    the  defendant   had    quitted  the 
premises,  so  that  neither  he  nor  his  pro- 
perty  could   have    been    molested    on 
account  of  the  tax,  at  the  time  when  the 
plaintiff  paid  it.  [See  Spencer  v.  Parry, 
explained  in  Brittain  v.  Lloyd,  14  M.  & 
W.  762.] 

Here  we  must  not  omit  to  remark, 
that  there  is  a  peculiarity  in  the  right 
of    the   tenant  to   recoup  himself   for 


moneys  paid  in  the  discharge  of  some 
burden  upon  the  land  prior  to  his  own 
interest  therein,  which  distinguishes  that 
from  all  other  cases  of  compulsory  pay- 
ment to  the  use  of  another.     Such  pay- 
ments,   when  made  by  a  tenant  under 
compulsion,    are  considered    as   actual 
payjuenls  of  so  much  of  his  rent,  and 
may  be   pleaded  by  way  of  payment,  as 
contradistinguished   from  set-off;    (see 
Taylor    v.    Zamira    and    Sapsford     v. 
Fletcher,   supra;)    whereas,    generally 
speaking,  one  who  has  been  compelled 
to  pay  the  demand  to  which  another  is 
liable,    although    he    may   recover  the 
amount  in  assumpsit,  or  set  it  off  in  an 
action   against   himself,   cannot  appro- 
priate  *it  to   the   payment  of  a  rrj^-^K-i 
debt  due  by  him   to   the  person  •-      *  -• 
to  whose  .use  he  paid  it,  without  obtain- 
ing that  person's  consent ;    the  fact  is, 
that,  in  cases  of  landlord  and  tenant,  the 
very  relation  in  which  the  parties  stand 
to  each  other  creates  an  implied  consent, 
upon  the  landlord's  part,  that  the  tenant 
shall  appropriate  such  part  of  his  rent 
as  shall  be  necessary  to  indemnify  him 
against   prior    charges,    and    that    the 
money  so  appropriated  shall  be  consider- 
ed as  paid  on   account  of  rent ;  but  this 
implication  is  liable  to  be  rebutted,  for 
if  the  landlord  were  afterwards  to  repay 
the  tenant   the    money  paid  by  him  in 
respect  of  the  charge,  he  might  recover 
the  entire  rent,  eo  nomine,  without  any 
deduction.     All  this  is  well  explained 
by  Buller,  J.,  in  Sapsford  v.  Fletcher. 
"  There  is  great   difference,"  says  his 
lordship,  "  between  a  payment  and  a  set- 
off; the   former  may  be  pleaded  to  an 
avowry,  though  the  latter  cannot.    That 
is  a  good  payment  which  is  paid  as  part 
of  the  rent  itself  in  respect  of  the  land, 
but  a  set-off  supposes  a  different  demand, 
arising  in  a  different  right.     It  was  said, 
that  if  the  tenant  had  paid  the  ground- 
rent,   and  the  landlord    had  afterwards 
repaid   him,    the  latter  could  not  avow 
for  the  whole  rent;    and  my  answer  is 
this,  that  the  payment  there  never  was 
coHsidered  by  both   as  a  payment,  and, 
if  not,  the  whole  rent  remains  due.     I 
consider  this  case  as  a  lease  from  the 
defendant  to  the  plaintiff,  at  the  annual 
rent  of  .50Z.,  out  of  which  5/.  per  annum 
was  to  be  paid  to  the  ground  landlord ; 
and  therefore  a  payment  of  that  ground- 
rent  is  a  payment  of  so  much  rent  to  the 
defendant,  and  may  be  pleaded  in  answer 
to  the  avowry  for  rent.  Neither  can  we 
suppose,  upon  this  record,  that  the  defen- 


176 


SMITHS     LEADING    CASES. 


(lant  ever  repaid  the  plaintiffthis  ground- 
rent,  for,  if  lie  had,  he  might  have  replied 
that  fact."  The  landlord,  therefore, 
generally  speaking  (for  in  some  cases  it 
is  taken  from  him  by  statute,)  has  the 
option  of  repaying  the  tenant  the  sum 
disbursed  by  him  to  discharge  the  prior 
claim  upon  the  land,  and  may  thus  pre- 
vent the  disbursement  from  being  consi- 
dered as  a  payment  of  so  much  of  the 
rent ;  and  tlie  tenant  may,  in  like  man- 
ner, elect  not  to  consider  it  as  such,  and 
may  signify  his  election  by  bringing  an 
action  tor  the  amount,  or  setting  it  off  in 
an  action  brought  by  his  landlord  against 
him  for  any  other  debt.  And,  indeed,  in 
some  cases  he  must  do  so;  for,  if  he  owe 
no  rent,  or  not  enough  to  cover  the  sums 
he  has  been  forced  'to  pay,  he  has  no 
other  means  of  reimbursing  himself. 
[See  Davies  v.  Stacey,  12  A.  &  E.  506. 
511.] 

It  is,  however,  necessary  to  remark, 
that  there  are  some  cases  which  qualify 
the  generality  of  the  doctrine  just  laid 
down,  by  compelling  the  tenant  to  avail 
himself  of  his  right  to  deduct  within  a 
given  period,  if  at  all.  The  property- 
tax  by  46-G.  3,  c.  64,  was  directed  to  be 
paid  by  the  occupier,  who  was  required 
to  deduct  it  out  of  the  next  rent.  In 
Denby  v.  Moore,  1  B.  &  A.  130,  the 
plaintiff  occupied  land,  and  paid  the  pro- 
perty-tax for  about  twelve  years,  and 
also  paid  the  full  rent  during  that  time, 
and  it  was  held  that  he  could  not  reco- 
ver back  again  the  amount  of  rent  thus 
over-paid.  This  case,  indeed,  was  deci- 
ded upon  grounds  not  much  akin  to  the 
subject  of  this  note,  for  the  action  was 
for  money  had  and  received  to  recover 
back  the  rent  over-paid,  not  for  money 
paid  to  the  defendant's  use  on  account 
of  property-tax.  And  the  court  thought 
that,  as  the  occupier  had  made  the  over- 
payments with  full  knowledge  of  the 
facts,  he  could  not  recover  them  back 
again ;  besides,  the  words  of  the  act 
were  express,  requiring  the  occupier  to 
deduct  the  tax  from  the  rent  next  due, 
and  there  were  good  reasons  for  insist- 
ing on  his  doing  so.  And,  therefore,  in 
Slubbs  v.  Parsons,  Bay  ley,  J.,  said,  "that 
he  laid  Denby  v.  Moore  out  of  the  ques- 
tion, that  decision  being  on  the  express 
words  of  the  property  act,  to  prevent 
frauds  on  the  revenue."  Andrew  v. 
Hancock,  1  B.  «&  B.  37,  was,  like  Saps- 
ford  V.  Fletcher,  an  action  of  replevin, 
and  the  defendant  having  avowed  for 
six  months'  rent  due  the  29th  of  Sep- 


tember, 1818,  the  plaintiff  pleaded  in 
bar  various  payments  of  land-tax  and 
paving  rates  made  to  prevent  his  goods 
from  being  distrained  between  1812  and 
1818,  while  he  was  tenant  to  the  defen- 
dant, which  payments  he  claimed  to 
deduct  from  the  rent  avowed  tor.  The 
plea  was  decided  to  be  bad  ;  principally, 
however,  upon  the  express  words  of  the 
acts  of  parliament,  by  which,  to  use  the 
words  of  Dallas,  C.  J.,  the  tenant  was 
not  only  allowed,  but  required,  to  deduct 
these  payments  out  of  the  rents  of  the 
then  current  *years.  In  Stubbs  r  ^^.^r,  -, 
V.  Parsons,  3  B.  &  A.  516,  a  L  '"-1 
similar  question  again  arose  with  respect 
to  land-tax,  that  also  was  an  action  of 
replevin,  cognizance  for  a  quarter's  rent 
due  the  25th  of  March,  1819.  The 
plaintiff  pleaded  a  tender  as  to  part,  and 
as  to  the  residue,  that  before  the  25th  of 
March,  and  before  the  said  time  when, 
&c.,  divers  sums,  amounting  to  the  resi- 
due, had  been  from  time  to  time  assessed 
on  the  premises  for  land-tax,  which  he 
had  been  compelled  to  pay.  On  de- 
murrer the  plea  was  held  bad,  because  it 
did  not  state  when  the  land-tax  claimed 
to  be  deducted  was  assessed  or  paid  ; 
and  it  was  consistent  with  the  plea  that 
it  might  have  been  a  payment  for  land- 
tax  due  before  the  rent  distrained  for 
either  accrued,  or  was  accruing,  or  even 
before  the  commencement  of  the  present 
landlord's  title.  "  The  ground,"  said 
Bayley,  J.,  "  on  which  my  judgment  pro- 
ceeds, is,  that  a  payment  of  the  land- 
tax  can  only  be  deducted  out  of  the  rent 
which  has  then  accrued,  or  is  then  ac- 
cruing, due,  for  the  law  considers  the 
payment  of  the  land-tax  as  a  payment 
of  so  much  of  the  rent  then  due,  or  grow- 
ing due,  to  the  landlord.  And  if,  after- 
wards, he  pays  the  rent  in  full,  he  cannot 
at  a  subsequent  time  deduct  that  over-  - 
payment  from  the  rent.  He  may,  in- 
deed, recover  it  back  as  money  paid  to 
the  landlord''s  use."  "  The  occupier," 
said  Holroyd,  J.,  "  has  a  lien  on  the  next 
rent  given  iiim  by  the  legislature,  for  the 
land-tax  paid  by  hiin ;  but  if  he  parts 
with  the  rent  without  making  the  deduc- 
tion, he  loses  his  lien,  and  has  only  his 
remedy  by  action  or  set-off." 

The  next  question  is,  whether  the 
limitation  in  point  of  time  established 
by  these  cases,  with  respect  to  deduc- 
tions of  land-tax,  applies  to  deductions 
in  respect  of  rent  paid,  under  dread  of 
distress,  to  the  superior  landlord,  or  in 
respect  of  arrears  of  a  rent-charge.     In 


CHANDELOR    V.     LOPTJS. 


177 


order  to  solve  this  question  we  cannot 
have  recourse,  as  in  cases  of  taxes,  to  the 
express  words  of  the  legislature  ;  we 
must,  therefore,  resort  to  principles  of 
common  sense  and  general  convenience. 
And  it  seems  not  unreasonable,  that  if  a 
tenant,  having  made  such  payments,  fail 
to  deduct  at  the  next  opportunity,  he 
should  be  taken  to  have  ahandoned  his 
right  to  do  so,  and  to  have  elected  to 
rely  upon  his  right  of  action  for  money 
paid  to  tiie  landlord's  use;  and,  indeed. 
Park,  J.,  in  Carter  v.  Carter,  5  Bing. 
409,  410,  appears  to  have  considered 
That  this  point  was  decided  by  Andrew  v. 
Hancock,  to  which  he  refers  as  to  a  case 
of  ground-rent.  Yet  it  would  be  hard 
to  preclude  the  tenant  from  deducting 
from  any  rent  not  actually  due  or  accru- 
ing at  the  time  of  his  making  the  pay- 
ments in  respect  of  which  he  claims  the 
right  of  deduction  ;  for  the  arrears  of 
rent-charge  or  head-rent  may  be  ex- 
tremely heavy,  and  may  cover  much 
more  than  the  amount  of  the  rent  then 
due  or  accruing  from  him  to  his  landlord. 
In  order  tiierefore,  to  do  full  justice,  he 
ought  to  be  allowed,  after  making  such 
a  payment  to  retain  *the  rent  for  as 
many  succeeding  rent-days  as  may  be 
necessary  to  place  him  in  statu  quo,  for 
he  cannot  prescribe  to  the  head  landlord 
or  incumbrancer  when  to  insist  on  pay- 
ment, and  therefore  ought  nut  to  suffer 
by  their  delay. 


But  it  seems  reasonable,  that  the 
tenant's  right  to  deduct  should  only  exist 
in  respect  of  payments  made  by  him  of 
arrears  which  accrued  due  in  the  time 
of  the  landlord  against  whom  he  claims 
the  deduction.  Suppose,  for  instance, 
premises  to  be  let  tor  101)/.  a  year,  and 
subject  to  a  head-rent  of  lOZ.  a  year,  of 
which  five  years  are  in  arrear  when  the 
mesne  landlord  assigns  his  reversion: 
upon  the  sixth  year  falling  due  the  head 
landlord  threatens  to  distrain,  and  the 
tenant  is  obliged  to  pay  him  sixty 
pounds:  shall  he  deduct  the  whole  of 
that  sunir  from  his  current  year's  rent,  or 
only  the  lOZ.  which  fell  due  during  his 
present  landlord's  time  ]  It  would  be 
hard  upon  the  assignee  to  adopt  the 
former  part  of  this  alternative. 

The  right  to  deduct  a  payment  in 
respect  of  ground-rent  has  not  been  con- 
fined to  tenants,  for  in  Doe  v.  Hare,  4 
Tyrwh.  29,  the  plaintiff',  having  reco- 
vered in  ejectment,  on  a  demise  from  the 
5th  of  June,  1880,  brought  an  action  for 
the  mesne  profits  between  that  day  and 
the  4tli  of  June,  \H'62,  when  the  sheriff' 
executed  the  ha.  fa.  po.  The  defendant 
was  allowed  in  reduction  of  damages,  a 
payment  in  respect  of  ground-rent  which 
had  become  due  the  24th  of  June,  1830, 
and  also  two  other  payments  of  ground- 
rent  which  fell  due  during  his  occupa- 
tion. 


*CHANDELOR  v.   LOPUS. 


[*77] 


PASCH^.— 1  JACOBI  1. 


[reported  2  CROKE,  2.] 


The  defendant  sold  to  the  plaintiff  a  stone,  which  he  af&rmed  to  be  a  Bezoar  stone,  but 
which  proved  not  to  be  so.  No  action  lies  against  him,  unless  he  either  knew  that  it 
was  not  a  Bezoar  stone,  or  warranted  it  to  be  a  Bezoar  stone. 

Action  upon  the  case  :  whereas  the  defendant,  being  a  goldsmith,  and 
having  skill  in  jewels  and  precious  stones,  had  a  stone,  which  he  affirmed 
to  Lopus  to  be  a  Bezoar  stone,  and  sold  it  to  him  for  a  hundred  pounds  ; 
ubi,  revera,  it  was  not  a  Bezoar  stone. 

The  defendant  pleaded,  Not  guilty. 

Vol.  I.— 12 


178 


smith's  leading  case 


After  verdict,  and  judgment  for  tlie  plaintiff  in  the  King's  Bench,  error 
was  therefore  brought  in  the  Exchequer  Chamber ;  because  the  declaration 
contains  not  matter  sufficient  to'  charge  the  defendant,  viz.  that  he  war- 
ranted it  to  be  u  Bezoar  stone,  ^or  that  he  knew  that  it  was  not  a  Bezoar 
stone  ;  for  it  may  be,  that  he  himself  u^as  ignorant  whether  it  were  a  Bezoar 
stone  or  not.   ■ 

And  all  the  Justices  and  Barons  (besides  Anderson)  held,  that  for  this 
cause  it  was  error.  For  the  bare  affirmation,  that  it  was  a  Bezoar  stone, 
without  warranting  it  to  be  So,  is  no  cause  of  action,  jtnd  atthovgh  he 
knew  it  to  be  no  Bezoar  stone  it  is  not  tnaterial.{*)  For  every  one,  in  selling 
of  his  wares,  will  affirm  that  his  wares  are  good,  or  the  horse  that  he  sells 
is  sound  ;  yet  if  he  warrants  them  not  to  be  so,-  it  is  no  cause  of  action. 
And  the  warranty  ought  to  be  made  at  the  same  time  as  the  sale.(t)  Fitz. 
Nat.  Brev.  94,  c.  and  98,  b. ;  5  H.  7,  41  ;  9  H.  6,  53  ;  12  H.  4,  1  ;  42 
p\.„  -,  Ass.  g.  7;  7  H.  4,  15.  WherefoiT,  forasmuch  as  no  warranty  *is 
•-  -^  alleged,  they  held  the  declaration  to  be  ill.  But  Anderson  to  the 
contrary  ;  for  the  deceit  in  selling  it  for  a  Bezoar,  whereas  it  was  not  so, 
is  cause  of  action,  But  rwtwithstanding  it  Vi^as  adjudged  to  be  no  cause, 
and  judgment  was  reversed. 


If  tne  plaintiff  in  this  case  were  to 
declare  upon  a  warranty  of  the  stone, 
he  wo«ld  at  the  present  day  perhaps 
succeed,  the  rale  of  law  bein^  that  evei-y 
affirmation  at  the  time  of  sale  of  person- 
al chattels  is  a  warranty  provided  it 
appears  to  have  Men  so  intended.  See 
Power  v.  Barham,  4  Ad.  &  E.  473 ; 
Shepherd  v.  Kain,  5  B.  &  A.  240;  Free- 
man v.  Baker,  2  Nev.  &  Mann.  446.  If 
not,  he  would  at  all'  events  succeed,  if 
he  were  to  sue  in  tort,  laying  a  scienter, 
since  the  fact  of  the  defendant's  being  a 
jeweller,  would  be  almost  irresistible 
evidence  that  he  knew  his  representa- 
tion to  be  false.  When  Chandelor  v-  Lo- 
pus  Was  decided,  as  the  action  of  as- 
sunipsit  was  by  no  means  so  distinguish- 
able from  case,  ordinarily  so  called,  as 
at  present;  so  the  distinction  was  not 
then  clearly  recognised,  which  is  now, 
however,  perfectly  established,  between 
an  action  upon  a  warranty  express  or 
implied,  which  is  founded  on  the  defend- 
ant's promise  that  the  thing  shall  be  as 
warranted,   and    in.  order   to  maintain 


which  it  is  unnaicessary  that  he  should 
be  at  all  aware  of  the  fallacious  nature 
of  his  undertaking,  and  the  action  upon 
the  case  for  false  representation,  in  or- 
der to  maintain  which,  the  defendant 
must  be  shown  to  have  been  actually 
and  fraudulently  cognisant  of  the  false- 
hood of  his  representations;  actions  of 
the  former  description  being  then  usual- 
ly framed  m  tort,  under  the  name  of 
actions  for  deceits  See  Williamson  v. 
Allison,  2  East,  44G ;  the  observations 
of  Grose,  J.,  in  Pasley  v.  Freeman,  3  T. 
R.  54,  and  of  Tindal,  C.  J.,  in  Budd  v. 
Fairmaner,  8  Bingh.  53.  Steuart  v.  Wil- 
kins,  Dough. 18,  is  said  by  Lawrence,  J. 
in  2  East,  451,  to  have  been  the  first 
case  where  the  question  was  regularly 
discussed,  and  the  mode  of  declaring  in 
assumpv-5it  established.  However,  the 
main  doctrine  laid  down  in  Chandelor  v. 
Eopus  has  never  since  been  disputed, 
viz.  that  the  plaintiff  must  either  declare 
upon  a  contract,  or,  if  he  declare  in  tort 
for  a  misrepresentation,  must  aver  a  sci- 
enter.    That  such  an  action  is  maintain- 


(*)  Tliis  proposition  which  was  not  necessary  to  tJie  decision,  lias  often  been  denied. 
Sec  the  notes  post  j  and  the  argument  for  fhc  jjlaintiff  in  error  in  this  very  case  admits 
the  contrary.  [8cealso  the  argument  of  the  reporter  (Croke)  for  the  plaintiff  in  the  case 
of  Southcrne  V.  Home,  2  Rollc,  5.] 

(t)  For,  if  made  afterwards,  there  is  no  consideration  for  it.  Finch,  L.  189,  3  Bl.  Com. 
166. 


^v.J^ 


CHANDELOR    V,     LOPUS. 


179 


able  when  the  scienter  can  be  proved, 
thoug-h  there  be  no  warranty,  is  now 
(notwithstanding  the  dictum  in  the  text) 
well  established.  Dunlop  v.  Waugh, 
Peake,  223  ;  Jendwine  v.  Slade,  2  Esp. 
572  ;  Dobell  v,  Stevens,  3  B.  &  C.  625  ; 
Fletcher  v.  Bovvsher,  2  Star.  561. 

It  is  sometimes  not  very  easy  to  de- 
termine whether  an  action  of  assumpsit 
upon  a  warranty  should  be  brought 
against  the  vendor  of  a  chattel,  or  whe- 
ther the  proper  remedy  be  by  action 
upon  the  case  for  misrepresentation. 
We  have  already  observed,  that  every 
affirmation  respecting  the  chattel,  made, 
at  the  time  of  sale,  by  its  vendor  is  a 
warranty,  if  so  intended..  But  it  is 
sometimes,  far  from  easy  to  decide,  whe- 
ther a  particular  assertion  was,  or  was 
not  intended  for  a  warranty  ;  and,  if  it 
turn  out  to  have  been  meant  merely  for 
a  representation,  the  plaintiff  suing  on 
it  must  aver  a  scienter  in  his  declara- 
tion, and  must  not  treat  it  as  a  warranty, 
but  will  be  defeated  unless  it  turn  out  to 
have  been  false  within  the  knowledge 
of  the  party  making  it.  Such  was  the 
case  of  Budd  v.  Fairmaner,  8  Bingh.  52, 
where  the  plaintiff,  in  order  to  prove  the 
warranty,  put  in  the  following  instru- 
ment, signed  by  the  defendant : — "  Re- 
ceived of  Mr.  Budd  lOi.  for  a  grey  four- 
year-old  colt,  warranted  sound  in  every 
respect." 

It  was  held  at  Nisi  Priits,  and  after- 
wards by  the  court  in  banc,  that  the 
warranty  applied  only  to  the  soundness, 
and  that  the  age  was  mere  matter  or 
description  and  the  plaintiff,  who  had 
sued  as  upon  a  warranty  of  the  age,  was 
nonsuited. 

With  respect  to  actions  upon  the 
case  for  a  false  representation,  although 
r  *7q  -\  t-he  ^declaration  always  imputes 
'■  -'  to  the  defendant  fraud,  and 
an  intent  to  deceive  the  plaintiff;  and 
although  it  is  expressly  laid  down  that 
"  fi*aud  and  falsehood  must  occur  to 
sustain  this  action,"  per  Gibbs,  C.  J., 
Ashlin  V.  White,  Holt,  387  ;  still,  in  or- 
der to  prove  such  a  fraud  as  the  law  con- 
siders sufficient  to  sustain  the  action,  it 
is  only  necessary  to  show  that  what  the 
defendant  asserted  was  false  within  his 
own  knowledge,  and  occasioned  damage 
to  the  plaintiff.  Foster  v.  Charles,  6 
Bingh.  396;  7  Bing.  108;  Corbet  v. 
Brown,  8  Bingh,  433.  In  Polhill  v. 
Walter,  3  B.  &  Adol.  122,  the  defend- 
ant,  who  had  formerly  been  in  partner- 
ship with  Hancorne,  and  still  carried  on 


business  in  the  same  house,  accepted, 
as  per  procuration  of  Hancorne,  a  bill 
drawn  on  the  latter.  The  bill  was  af- 
terwards indorsed  to  the  plaintiff,  who 
gave  value  for  it,  and  having  been  dis- 
honoured by  Hancorne,  the  plaintiff  sued 
the  defendant  for  "  falsely  and  fraudu- 
lently pretending"  to  accept  the  same 
by  procuration  of  Hancorne.  At  the 
trial  the  jury  being  directed  by  Lord 
Tenterden  to  find  for  the  defendant  if 
they  thought  there  was  no  fraud,  other- 
wise for  the  plaintiff,  found  a  verdict  for 
the  defendant ;  his  Lordship  giving  the 
plaintiff  leave  to  move  to  enter  a  ver- 
dict ;  which  motion  was  accordingly 
made,  and  the  rule  to  enter  the  verdict 
for  the  plaintiff  ultimately  made  absolute. 

"  If,"  said  Lord  Tenterden,  delivering 
the  judgment  of  the  court,  "  the  defen- 
ant  when  he  wrote  the  acceptance,  and 
thereby  in  substance  represented  that 
he  had  authority  from  the  drawer  to 
make  it,  kneW  that  he  had  no  such  au- 
thority (and  upon  the  evidence  there  can 
be  no  doubt  he  did,)  the  representation 
was  untrue  to  his  knowledge,  and  we 
think  that  an  action  will  lie  against  hira 
by  the  plaintiff  for  the  damage  sustained 
in  consequence." 

The  first  instance  in  which  an  action 
of  tort  for  a  misrepresentation  respect- 
ing the  ability  of  a  third  person  was 
solemnly  adjudged  to  be  maintainable, 
is  the  case  of  Pasley  v.  Freeman,  3  T. 
R.  53,  decided  by  Lord  Kenyon,  C.  J., 
Ashhurst,  J.,  and  Buller,  J.,  against  the 
opinion  of  Grose,  J.,  a.  d.  1789.  It  came 
before  the  court  on  motion  in  arrest 
of  judgment,  on  a  declaration,  stating, 
"  that  the  defendant,  intending  to  de- 
ceive and  defraud  the  plaintiffs,  did 
wrongfully  and  deceitfully  encourage 
and  persuade  them  to  deliver  certain 
goods  to  Falch  on  credit,  and  for  that 
purpose  did  falsely,  deceitfully  and  fraud- 
ulently assert  that  Falch  was  a  person 
safely  to  be  trusted,  whereas,  in  truth, 
Falch  was  not  a  person  safely  to  be 
trusted,  and  the  defendant  well  knew 
the  same."  One  of  the  consequences 
of  its  introduction  was  to  qualify  consid- 
erably the  effect  of  that  enactment  of 
the  statute  of  frauds,  which  requires  that 
guaranties  should  be  in  writing  ;  since 
it  frequently  happened,  that  where  one 
person  had  interested  himself  to  procure 
credit  for  another,  in  a  manner  which 
would  have  been  insisted  upon  as 
amounting  to  a  guaranty  but  for  the  en- 
actment of  the  statute  of  frauds,  the  ex- 


180 


SMITHS     LEADING     CASES. 


pressions  used  by  him  in  his  endeavours 
to  effect  his  purpose,  were  relied  on  as 
representaiions  respecting  his  friend's 
credit  or  character,  and  he  was  accord- 
ingly sued  in  the  form  of  which  Pasley 
V.  Freeman  has  established  the  legiti- 
macy. It  was  in  order  to  prevent  the 
statute  of  frauds  from  being  thus  trench- 
ed upon,  that  the  legislature,  in  9  G.  4, 
c.  14,  commonly  called  Lord  Tenter- 
den's  act,  enacted,  sec.  6,  "  that  no  action 
shall  be  maintained,  whereby  to  charge 
any  person  upon,  or  by  reason  of,  any 
representation  or  assurance  made  or 
given  concerning  or  relating  to  the  cha- 
racter, conduct,  credit,  ability,  trade,  or 
dealings  of  any  other  person,  to  the  in- 
tent or  purpose  that  such  other  person 
may  obtain  credit,  money,  or  goods  upon, 
unless  such  representation  or  assurance 
be  made  in  writing,  signed  by  the  party 
to  be  charged  therewitli." 

This  section  of  the  act  was  elaborate- 
ly discussed  in  the  great  case  of  Lyde  v. 
Barnard,  1  M.  &  W.  101.  It  was  an 
action  on  the  case  for  falsely  represent- 
ing, in  answer  to  inquiries  on  that  sub- 
ject, that  the  life-interest  of  Lord  Edward 
Thynne  in  certain  trust-funds  was  charg- 
ed only  with  three  annuities,  whereby  the 
plaintiff  was  induced  to  advance  to  the 
said  Lord  E.  T.  999/.  for  the  purchase 
r*S01  *°^  ^"  annuity,  secured  by  his 
•-  -'  covenant,  bond,  warrant  of  attor- 
ney, and  an  assignment  of  his  life  inter- 
est in  the  said  funds ;  whereas  the  de- 
fendant well  knew  that  the  said  interest 
was  charged  not  only  with  three  annui- 
ties, but  with  a  mortgage  for  20,000/. 
At  the  trial,  it  appeared  that  the  false 
representation  was  made  on  parol,  on 
which  the  Lord  Chief  Baron  nonsuited 
the  plaintiff,  conceiving  the  case  to  fall 
within  the  9  G.  4,  c.  14,  s.  <5.  On  the 
motion  for  a  new  trial,  the  court  was 
equally  divided,  and  the  learned  barons 
delivered  elaborate  opinions  seriatim. 
Lord  Abinger  and  Gurney,  B.  thought 
the  case  within  the  statute,  conceiving 
the  true  construction  to  be,  that  the 
representation  or  assurance  thereby  re- 
quired to  be  in  writing,  should  concern 
or  relate  to  the  ability  of  the  third  per- 
son effectually  to  perform  and  satisfy 
an  engagement  of  a  pecuniary  nature, 
into  which  he  has  proposed  to  enter, 
and  on  the  faith  of  which  he  is  to  obtain 
money,  credit,  or  goods  ;  and  conceiving 
that  the  representation  in  this  case  did 
concern  the  ubiliiy  of  Lord  E.  T.  to  per- 
form an  engagement  of  a  pecuniary  na- 


ture, on  the  faith  of  which  he  was  to  ob- 
tain money,  since  it  concerned  his  ability 
to  give  the  plaintiff  a  sulBcient  security 
to  repay  him,  by  way  of  a  life  annuity, 
the  money  he  was  about  to  advance. 
"The  ability  of  a  man  (it  was  urged) 
consists  in  the  sources  from  which  it  is 
derived.  He  may  have  a  landed  estate 
unfettered  by  mortgage  or  other  incum- 
brance, or  a  sum  of  money  in  the  funds, 
or  a  large  capital  embarked  in  a  success- 
ful trade,  or  a  large  balance  in  his  bank- 
er's hands.  Upon  all  or  any  one  of  these 
his  general  ability  may  depend.  Can  it 
be  said  that  a  representation  of  any  one 
of  these  sources  of  ability  has  no  relation 
to  his  general  ability  !"  To  this  it  may 
be  added,  that  it  is  in  the  nature  of 
things  impossible  that  one  man  should  be 
cognizant  of  another's  general  ability 
in  any  other  way  than  by  knowing  a 
number  of  particular  facts  of  this  descrip- 
tion, for  a  man's  general  ability  consists 
of  his  property,  minus  his  debts.  With 
tlieainount  of  his  property,  a  third  person 
may  be  certain  tiiat  he  is,  at  least,  to  a 
certain  extent,  acquainted,  by  knowing 
the  items  that  compose  it.  But  how 
can  any  one  be  certain  that  he  knows 
the  amount  of  another's  debts'?  Yet  if 
those  debts  exceed  his  property,  he  is 
insolvent,  and  his  generalability  amounts 
to  nothing.  It  is  true,  that,  the  larger 
his  property,  the  more  numerous  and  val- 
uable its  items,  the  smaller  is  the  likeli- 
hood that  his  liabilities  should  exceed  it; 
which  plainly  shows,  that  to  arrive  at 
any  estimate  of  a  man's  general  ability, 
the  items  of  his  property  are  mainly  to 
be  taken  into  consideration.  On  the 
other  hand,  Parke  and  Alderson,  Barons, 
conceived  that  the  representation  in 
question  did  not  appear  to  relate  to 
"  the  character,  conduct,  credit,  ability, 
trade  or  dealings"  of  Lord  Edward 
Thynne;  and  tlierefore,  did  not  fall 
within  the  statute.  "It  does  not,"  it 
was  urged,  "  concern  or  relate  to  his 
character,  or  to  his  credit ;  it  does  not 
relate  to  his  conduct,  trade,  or  dealings, 
for  it  is  totally  immaterial  with  refer- 
ence to  the  inquiry,  and  the  answer  to  it, 
who  had  incumbered  the  fund  ;  the  only 
question  in  substance  being,  to  what  ex- 
tent it  was  incumbered.  And  it  does  not 
concern  or  relate  to  his  ability  ;  for  that 
word,  especially  when  we  look  at  those 
which  accompany  it,  means,  in  its  ordi- 
nary sense,  some  quality  belonging  to 
the  third  party,  and  not  to  the  thing  to 
be  transferred,     la  order  to  bring  the 


CHANDELOR    V.     LOPUS. 


l&l 


particular  case  within  the  statute,  this 
last  word  is  relied  on,  and  it  is  said  that 
the  representation  of  the  state  of  tlie 
fund  relates  to  the  'ability'  of  the  in- 
tended jTiantor  of  the  annuity,  that  is  to 
his  ability  to  fulfil  his  contract  to  charge 
the  fund;  or,  if  no  contract  was  made 
at  the  time  of  the  representation  (as 
there  was  not,)  then  the  phrase  must  be 
changed,  and  it  must  be  said  to  relate  to 
his  ability  to  charge  the'  fund.  But  this 
will  hardly  be  sufficient  to  answer  the 
exigency  of  the  case ;  for  there  is  really 
no  question  as  to  the  power  of  the  per- 
son to  charge  the  fund,  such  as  it  is;  it 
must,  therefore,  be  said  to  relate  to  his 
ability  to  give  security  on  a  fund  of  ade- 
quate value.  But  this  is  a  very  forced 
construction  of  the  word  ability.  It  is 
true,  that  a  representation  as  to  the  con- 
dition of,  or  value  of,  a  particular  part 
r*Qi  -1  of  a  man's  property,  may  *rclate 
^  -'to,  or  concern  his  character,  cre- 
dit, &c.  It  would  do  so,  when  the 
object  of  the  inquirer  is  to  give  credit 
to  the  third  person  on  his  personal  re- 
sponsibility, and  he  is  seeking  informa- 
tion as  to  the  part  of  the  means  which 
constitute  its  value.  13ut  if  it  was  doubt- 
ful whether  the  present  representation 
was  meant  to  relate  to  the  state  of  the 
fund  only,  or  to  the  slate  of  the  iund  as 
an  element  of  Lord  Edward  Thynne's 
personal  credit,  that  question  ought  to 
have  been  submitted  to  the  jury." 


The  court  being  equally  divided,  the 
rule  would  have  been  discharged,  but 
the  question  being  of  great  importance, 
a  new  trial  was  granted  on  payment  of 
costs,  in  order  that  it  might  be  raised 
upon  the  record.  I  am  not,  however, 
aware  that  it  was  so.  The  opinion  of 
Lord  Abinger  and  Gurney,  B.,  appears, 
however,  to  be  reinforced  by  that  of  the 
il.  B.  in  Swaun  v.  Phillips,  8  &  E. 
457. 

In  a  subsequent  case,  the  Court  of 
Queen's  Bench  held  that  though  the 
action  be  for  money  had  and  received  to 
recover  cash  obtained  from  the  plaintiff 
by  means  of  the  misrepresentation,  still, 
if  the  misrepresentation  constitute  the 
whole  of  the  plaintiff's  case,  parol  evi- 
dence of  it  cannot  be  received.  Has- 
lock  v.  Fergusson,  7  Ad.  &l  Ell.  16. 
Whether  in  a  case  depending  partly  but 
not  wholly  on  such  a  misrepresentation, 
parol  evidence  would  be  admissible,  is 
not  yet  solemnly  decided. 

The  act  applies  to  a  misrepresenta- 
tion by  one  partner  respecting  the  credit 
of  the  firm.  Devaux  v.  Steinkeller,  6 
Bingh.  N.  C.  84. 

The  action  for  a  misrepresentation  in 
the  nature  of  deceit  S6;ems  to  be  an  ex- 
ception from  the  general  rule,  that  in 
actions  for  words,  or  special  damage 
arising  therefrom,  the  very  words  must 
be  set  out.  Gutsole  v.  Mathers,  5  Dowl. 
70. 


An  implied  warranty  of  title  was  always  presumed  by  the  common  law 
in  sales  of  chattels,  although  never  in  those  of  estates  of  freehold,  where 
tenure  was  not  created,  nor  particular  words  of  gift  employed.  An  implied 
warranty  of  quality  or  value  was  absolutely  unknown  in  both  cases;  and 
even  where  there  is  an  express  agreement  on  the  part  of  the  vendor  to  be 
answerable  for  the  goodness  and  nature  of  his  wares,  it  would  seem  that  the 
term  warranty  is  applied  to  it  rather  from  the  want  of  a  correct  technical 
name,  than  from  any  real  analogy  between  the  nature  of  the  obligation  it 
imposes  and  that  arising -under  the  common  law  warranty  of  title.  To  con- 
stitute a  breach  of  the  latter,  there  was  always  necessary  the  judg-ment  of 
the  law,  at  which  the  warrantor  might  in  general,  appear  and  be  repre- 
sented ;  and  even  then,  to  complete  the  right  of  suit  in  the  warrantee  an 
actual  eviction  was  necessary.  A  similar  judgment,  and  the  actual  dispos- 
session or  injury  of  the  vendee  under  its  operation,  are  as  necessary  now  on 
a  warranty  of  title  in  chattels,  as  formerly  in  the  case  of  a  warranty  of  land, 
and  of  course,  tend  very  much  to  diminish  the  danger  of  a  fraudulent  or 
frivolous  attempt,  to  defeat  the  rights  of  the  vendor,  or  charge  him  with  a 


183  smith's    LEADINGCASES. 

liability  under  his  implied  undertaking  that  he  has  a  good  right  to  convey, 
where  no  actual  defect  of  title  has  existed,  and  no  real  loss  has  been 
incurred;  Vibbard  v.  Johnson,  19  Johnson,  79;  Defreeze  v.  Trumper,  1  Id. 
274.  Under  the  modern  warranty  of  character  or  quality,  however,-  there 
is  no  such  hmilation  to  the  claims  of  the  vendee ;  and  he  may  either  set  up 
the  real  or  imaginary  defects  discovered  or  created  by  himself,  as  a  ground 
for  putting  the  vendor  to  an  action  to  enforce  the  payment  of  the  purchase- 
money,  or  tise  the  warranty  directly  as  the  foundation  of  a  suit  against  him 
at  any  period  not  excluded  by  the  statute  of  limitation,  when  it  can  be  made 
to  appear  that  the  defects  of  the  purchase  existed  before  the  sale.  It  seems, 
therefore,  that  there  is  every  reason  for  upholding  the  rule  of  the  common 
law  as  laid  down  in  Chandelor  v.  Lopus,  and  not  affecting. a  vendor  with 
the  liability  to  consequences  which  may  prove  so  fatalj  unless  when,  by 
some  express  agreement,  he  has  subjected  himself  to  them. 

Nor  can  the  common  law,  in  refusing  to  imply  from  the  representations 
or  concealment  of  the  vendor  at  the  time  of  the  sale,  a  warranty  as  to  the 
qualities  which  he  asserts,  or  the  defects  which  he  does  not  declare,  be 
justly  charged  with  that  inattention  to  the  interests  of  morality,  and.  too  close 
adherence  to  the  practical  possibilities  of  life  which  has  sometimes  been 
urged  against  iti  In  no  case  whatever  does  that  law  allow  a  misrepresenta- 
tion, knowingly  made  or  uttered  to  the  injury  of  another,  to  go  unpunished 
by  an  appropriate  remedy.  And  this  doctrine  is  as  applicable  to  sales  of 
chattels,  as  to  all  other  human  transactions.  By  the  side  of  the  action  for 
breach  of  warranty,  stands  the  action  on  the  case  for  deceit.  Under  its 
operation,  the  vendor  may  be  made. liable  for  any  intentional  misstatement, 
whereby  the  vendee  is  induced  to  purchase  under  a  false  impression  ;  or 
if  the  purchase-money  has  not  already  been  paid,  such  fraudulent  repre- 
sentations may  be  pleaded  or  given  in  evidence,  to  diminish  or  defeat  a 
recovery  in  any  suit  brought  to  enforce  a  payment.  The  responsibility  of 
the  vendor  is  thus  made  to  extend  as  far  as  it  can  with  justice  be  carried  ; 
since,  even  where  there  is  no  express  contract,  he  is  bound  to  answer-  the 
inquiries: of  the  vendee  fairly,  or  else  by  silence  to  excite  his  suspicions,  and 
stimulate  his  inquiries.  But  beyond  this  point  the  Vendor  cannot  with  jus- 
tice be  made  liable.  There  are  evidently  a  variety  of  different  relations 
under  which  a  contract  of  sale  may  be  formed  ;  and  the  rights  and  obliga- 
tions of  the  parties  must  be  as  various  as  those  relations.  The  vendee  may 
■effect  the  purchase  exclusively  upon  his  own  information  and  skill,  without 
asking  or  receiving  aid  from  the  vendor;  or  he  may  call  to  his  assistance  the 
knowledge  possessed  by  the  vendor,  without  expecting  or  demanding  any 
thing  more  than  a  faithful  statement  of  such  knowledge  as  it  exists  ;  or, 
finally,  he  may  require  from  the  latter,  an  express  undertaking  that  the 
goods  purchased  shall  be  of  a  certain  character  and  quality  ;  thus  throwing 
upon  him  the  risk  of  all  those  uncertainties  which  must,  ever. attend  upon 
siich  transactions.  In  each  of  these  cases,  the  obligations  and  rights  of  the 
parties  are,  and  ought  to  be,  different.  In  the  first,  the  vendee  havingasked 
and  expected  nothing  from  the  vendor,  the  law  raises  no  liability,  between 
them  ;  in  the  second,  as  the  vendee  has  purchased  upon  the  opinion  of  the 
vendor,  the  latter  is  bound  to  state  it  fairly,  but  is  not  responsible  for  its  cor- 
rectness in  point  of  fact ;  while  in  the  third  case,  even  if  deceived  himself, 
and  although  he  may  have  acted  with  the  fullest  good  faith,  he  will  of 


« 


CHANDELORV.     LOPUS.  183 

course  be  liable,  if  the  goods  do  not  correspond  with  the  standard  fixed  by 
the  express  warranty  which  the  purchaser  has  required.  It  must  be  evi- 
dent that  the  duties  of  the  seller,  and  the  claims  of  the  purchaser,  vary  very 
much  in  these  diiferent  cases,  and  that  to  confuse  the  distinctions  which  exist 
between  them,  and  make  a  vendor  who  has  cither  made  no  statements  to  the 
veadee,  or  none  which  he  did  not  himself  believe-,  answerable  in  the  absence 
of  express  warranty,  for  defects  of  which  he  may  not  have  known  .the  exist- 
ence-, is  to  impose  a  liability,  arising  neither  out  of  tort  nor  contract^  the  only 
sources  from  which  actions  personal  can  rightly  flow. 

This  exposition  of  the  law  must  be  regarded  as  merely  a  fuller  statement 
of  the  legal  propositions,  contained  in  the  assignment  of  error  in  the  case  of 
Ghandelor  v.  Lopus,  as  cited  above.  It  was  there  said,  that  to  charge  the 
defendant, -the  declaration  should  have  averred  "that  he  warranted  it  to  be  a 
Bezoar  stone,  or  that  he  knew  it  not  to  be  a  Bezoar  stone."  In  other  words, 
tliat  it  should  have  proceeded  either  in  tort  or  contract;  and  with  sufficient 
matter  expressed,  to  support  one  or  the  other.- 

The  Supreme  Court  of  Pennsylvania  has  adhered  to  the  principles  of  the 
common  law  as  stated  above,  and  in  the  absence  of  an  express,  will  not  pre- 
sume an  implied,  warranty.  Thus  in  the  case  of  Jackson  v.  Wetherill,  7 
Sergeant  &  Rawle,  480,  the. plaintiff,  in  an  action  brought  against  the  defend^ 
ant  on  the  sale  of  a  mare,  gave  in  evidence  the  repeated  declarations  of  the 
latter  at  the  time  of  the  contract,  that  she  was  perfectly  safe,  kind,  and  gentle, 
in  harness;  and  judgment  was  given  against  the  defendant  in  the  court 
below,  as  for  breach-  of  an  implied  warranty,  arising  out  of  these  statements 
This  judgment  was,  however,  reversed  in  error,  by  the  Supreme  Court, 
who  hekCthat  the  statements  of  the  defendant  were  mere  representations, 
which,  if  unfounded,  and  made  with  a  knowledge  of  their  falsehood,  would 
have  entitled,  the  plaintiff  to  an  action  on  the  case,  for  deceit,  but  could  not 
be  construed  either  into  an  express  or  implied,  contract  of  warranty.  In  the 
subsequent  case  of  M'Fai-land  v.  Newman,  9  Watts,  56,  where  nearly  the 
same  question  again  arose,  on  a  -similar  sale,  this  decision  was  affirmed. 
Gibson, C. J.,  in  delivering  the  opinion  of  the  court,  strongly  insisted  on  the 
propriety  and  justice  of  the  commoia  law  doctrine  on  this  subject ;  and  held, 
that  to  constitute  a  warranty,  although  no  particular  form  of  words  was 
necessary,  the  jury  must  be  satisfied  that  the  party  actually,  and  not  con- 
'."structively,  consented  to  be  -bound,  for  the  truth  of  his  represenl-ations. 

In  the  interval,  of  time  between  the  decisions  just  cited,  it  had  been 
held  in  Jennings  .v.- Gratz,  3  Rawle,  169;  that  no  warranty  of  quality  was 
to  be  implied. on- a.  sale  of  merchandise, -even  where  the  defects  arose  from 
adulterations,  producing,  as  far  as  they  extended,  a  change  in  specie. 
In  the  case  of  Kirk  v.  Nice,  2  Watts,  367,  the  defendant  had  contracted  to 
deliver  to  the  plaintiff  a  large  quantity  of  .bar  iron,  to  be  made  of  Centre 
county  metal,  for  which  he  had  been  paid  in  advance,  and  the  action  was 
instituted  to  recover  damages  for  the  bad  and  unmerchantable  quality  of  part 
of  the  iron,  delivered  in  execution  of  the  contract.  Agreeably  to  the  under- 
standing between  the  parties,  the  defendants  were  to  cast  the  bars  them- 
selves, thus  raising  the  question  of  the  peculiar  obligation  supposed  to  rest 
upon  manufacturers,  to  furnish  merchantable  wares  ;  but  the  Supreme  Court 
before  whom  the  suit  was  brought  in  error,  while  attaching  much  weight 
to  the  proviso  that  the  metal  employed  should  be  from  Centre  county,  as 


184  smith's  leading  cases. 

restricting  the  liability  of  the  defendants  within  its  limits,  held,  in  g-eneral, 
that  even  as  manufacturers,  they  were  not  bound  by  any  implied  warranty 
as  to  the  quality  of  their  wares  ;  and  that,  in  the  absence  of  fraudulent  mis- 
representation, they  were  not  liable  to  the  plaintiffs,  even  if  they  sold  the 
iron,  knowing  it  to  be  unnierchantable. 

in  like  manner,  the  principles  of  the  common  law  on  the  subject  of  war- 
ranty, have  been  closely  followed  by  the  superior  tribunals  of  New  York  and 
Massachusetts  ;  although  there  may,  in  some  of  the  cases  in  those  states,  be 
reason  to  doubt  the  correctness  with  which  they  were  applied  to  the  facts 
before  the  court. 

Thus  in  the  case  of  Sands  v.  Taylor,  5  John.  395,  wheat  had  been  sold 
by  the  plaintiffs,  which,  in  consequence  of  having  been  heated,  although 
capable  of  being  used  as  flour,  was  unfit  for  malting,  the  purpose  for  which 
it  had  been  purchased.  Notwithstanding  an  immediate  attempt  to  disaffirm 
the  contract,  made  by  the  vendee  on  discovering  the  defect,  the  court,  on  the 
ground  that  no  warranty  was  to  be  implied,  gave  judgment  for  the  plaintiff, 
in  a  suit  brought  by  him  for  the  purchase-money.  Subsequently,  nearly 
the  same  point  was  brought  up,  in  the  case  of  Hart  v.  Wright,  17  Wend, 
267.  Flour  made  from  heated  wheat,  and  from  a  latent  defect  not  discove- 
rable by  examination,  unfit  to  be  manufactured  into  starch,  or  even  used  for 
food,  except  in  the  form  of  biscuit,  had  been  sold  to  a  starch  manufacturer. 
Notwithstanding  an  attempt  to  raise  an  implied  warranty,  from  the  circum- 
stances of  the  sale,  it  was  held,  in  an  action  brought  by  him  to  recover 
damages  for  this  defect,  that  the  flour  had  been  taken  at  his  own  risk,  and 
without  any  implication  of  warranty  against  the  vendor.  This  decision 
was  subsequently  brought  before  the  Court  of  Errors,  where  the  judgment 
of  the  Supreme  Court  was  affirmed  upon  the  same  reasoning  as  that  on 
which  it  had  been  given  below.  Wright  v.  Hart,  18  Wend.  449.  To  the 
same  efl'ect  is  the  case  of  Salisbury  v.  Stainer,  19  Wend.  159,  where  it  was 
decided  that  the  plaintiff,  who  with  opportunity  aflbrded  of  examining  for 
himself,  had  purchased  hemp  in  bales,  upon  a  representation  that  it  was  of 
the  first  quality,  but  which  proved  in  the  interior  of  the  bales  to  be  of  infe- 
rior value,  and  mixed  with  tow,  could  not  recover  against  the  vendor,  with- 
out proving  on  his  part,  knowledge  of  the  erroneous  nature  of  his  represen- 
tations, or  an  express  warranty. 

But  the  strongest  cases  against  the  doctrine  of  implied  warranty  to  be 
found  in  the  whole  range  of  American  decisions,  are  those  of  Seixas  v. 
Woods,  2  Caines,  48,  Holden  v.  Dakin,  4  John.  421,  and  Swett  v.  Colgate, 
20  John.  196.  In  each  of  these  cases,  there  was  not  merelj''  a  defect  in  the 
quality  of  the  merchandise  sold,  but  an  entire  failure  in  kind  ;  the  articles 
delivered  not  corresponding  in  specie,  with  the  terms  or  representations 
employed  in  the  contract  of  sale.  Thus,  in  the  first  case,  the  vendee 
had  contracted  to  purchase  Brazil  wood,  in  the  second,  white  lead,  and  Jn 
the  third,  barilla  ;  while  the  vendors,  in  executing  the  several  contracts, 
had  respectively  delivered  peachum  wood,  a  while  substance,  containing 
but  little  lead,  and  kelp;  all  of  thenrarticles  of  much  inferior  value,  but 
closely  resembling  those  which  were  nominally  the  objects  of  sale. 

These  cases  were,  therefore,  exactly  in  point  with  Chandelor  v.  Lopus ; 
and  in  accordance  with  that  decision,  it  was  in  each  instance  held,  that  as 
no  warranty  was  expressed,  none  could  be  presumed  ;  and  that,  in  such  a 


CHANDELORV.     LOPUS.  185 

case  in  order  to  recover,  acts  or  representations  on  -the  part  of  the  vendor, 
intended  to  produce  a  false  impression  on  the  mind  of  the  purchaser,  must 
be  averred,  in  the  declaration. 

It  should  be  observed,  that  the  supposed  nature  of  the  substance  sold,  was 
in  each  of  these  instances  set  forth  in  the  advertisement  or  bill  of  parcels, 
by  which  the  sale  was  preceded  or  brought  to  a  consummation.  A  descrip- 
tion of  this  sort  would  now,  in  most  of  the  courts  in  this  country,  enter  into 
and  qualify  the  contract,  although  treated  in  these  decisions  as  mere  matter 
of  representation;  but  their  authority  is  not  the  less  strong  for  the  purpose  of 
showing  that  what  is  admitted  to  be  mere  representation,  cannot  impose  the 
obHgation  of  contract,  nor  amount  to  a  warranty.  Of  course,  therefore,  in 
the  absence  of  all  assertion  on  the  part  of  the  vendor,  with  regard  to  the 
nature  or  quality  of  the  goods  which  have  formed  the  subject-matter  of  an 
executed  contract  of  sate^  these  cases  as  well  as  those  of  Hart  v.  Wright, 
and  Salisbury  v,  Stainer,  will  be  fully  in  point ;  and  although  a  full  price  may 
have  been  paid,  and  the  purchase  effected  by  the  vendee  under  a  belief  of  its 
soundness,  he  will  be  left  without  remedy,  even  against  latent  defects  of  a 
nature  to  have  escaped  detection.  In  the  recent  case  of  Moses  v.  Mead,  1 
Denio,  578,  the  previous  decisions  in  New  York  to  this  efiect,  from  Seixas 
V.  Woods,  down  to  Salisbury  v.  Stainer,  were  confirmed,  and  it  was  decided 
that  no  action  could  be  maintained  against  the  defendant,  who  had  sold 
to  the  plaintiff  at  the  ordinary  market  price,  a  number  of  casks  of  salt  beef, 
which  when  opened,  proved  to  be  wholly  spoiled  and  unmarketable. 

The  case  of  Conner  v.  Henderson,  15  Mass.  320,  is  in  entire  accordance 
with  these  cases,  and  with  the  decision  of  Chandelor  v.  Lopus.  The  plain- 
tiff there  declared  on  a  contract  by  the  defendant,  to  deliver  eighty-nine 
casks  of  lime  of  good  quality,  and  averred  a  breac]!,  by  the  d-elivery  of  lime 
of  little  value,  and  not  merchantable,  and  added  a  count  for  money  had  and 
received  to  his  use.  The  evidence  showed  that  the  casks  contained, 
instead  of  lime,  a  mixture  of  sand  and  stone,  but  there  was  no  proof  of  a 
scienter  against  the  defendant,-  who  had  made  the  sale  as  agent ;  although 
personally  liable  thereon,  as  not  having  disclosed  his  principal.  It  was  held 
by  the  court,  that  the  action  could  not  be  maintained  for  a  breach  of  war- 
ranty, since,  in  the  absence  of  express,  no  implied  warranty  could  be  pre- 
sumed ;  and  that  the  plaintiff  could  not  have  judgment  on  the  count  for 
money  had  and  received  to  his  use,  since  he  had  not  expressly  rescinded 
the  contract  by  returning  the  articles  delivered. 

The  court  however  expressed  their  opinion,  that  on  the  evidence  before 
them,  a  declaration  might  be  framed,  sufficient  to  entitle  the  plaintiff  to 
judgment.  As  ignorance  of  the  fraud  on  the  part  of  the  defendant,  pro- 
tected him  from  all  liability  in  case,  while  it  was  decided  that  the  plaintiff's 
evidence  did  not  prove  warranty,  we  must  presume  that  a  declaration  aver- 
ring a  contract  for  the  delivery  of  lime,  and  a  breach,  by  the  delivery  of 
slone,  was  intended  bythe  court.  A  count  to  that  effect  was  subsequently 
added  to  the  declaration  on  which  the  plaintiff  recovered.  See  Henderson 
V.  Seevy,  2  Maine,  139.  In  the  previous  case  of  Emerson  v.  .Brigham, 
10  Mass.  203,  it  appears  fully  to  have  been  held  by  the  same  tribunal,  that 
on  the  sale  of  provisions,  where  no  express  warranty  was  given,  an  implied 
warranty  could  not  be  presumed,  even  as  to  their  Avholesomeness,  or  filrless 
for  use ;  and  the  views  there  presented  on  this  head  were  subsequently 


186  smith's  leading  cases. 

approved  in  the  opinion  delivered  in  the  case  of  Winsor  v.  Lombard,  18 
Pick.  57. 

The  general  doctrine  of  the  decisions  above  cited,  will  be  found  fully  car- 
ried out  and.  supported,  by  the  cases  of  Reed  v.  Wood,  9  Vermont,  288  ; 
Dean  v.  Mason,  4  Conn.  433  ;  Jones  v.  Murray,  3  Monroe's  Kentuck}' 
Rep.  83  ;  Stone  v.  Denny,  4  Metcalf,  154  ;  Erwin  v.  Maxwell,  3  Murphy's 
N.  C.  R.  241  ;  Perry  v.  Aaron,'  1  John.  129  j  Hyatt  v.  Boyle,  5  Gill  &. 
Johns.  110;  Johnston  v.  Cope,  3  Harr.  &  Johns.  89 ;  Stewart  v.  Dougherty, 
6  Dana,  479.  These  cases  are  all  substantially  to  the  same  effect  with 
those  cited  above,  and  may  be  considered  as  proving,  in  connexion  with 
them,  that  the  general  course,  of  American  law,  has  continued  to  flow 
within  the  channels  indicated  by  the  authority  of  Chandelor  v.  Lopus,  and 
does  not,  in  the  absence  both  of  fraud  and  express  warranty,  affect  .a; 
vendor  with  any  responsibility  for  the  defective  quality  of  his  goods  or 
merchandise. 

■  In  some  of  the  states,  however,  a  different  rule  prevails.  Thus  in  the 
case  of  Barnard  v.  Yates,  Gantt,  J.,  in  delivering  the  opinion  of  the  court. 
not  merely  held,  that  in  the  absence  of  express  warranty  or  fraud,  and 
indeed,  of  representation,  the  vendee,  who  had  purchased  with  the  fullest 
opportunity  of  examining  for  himself,  might,  in  an  action  on  a  note  given 
for  the  purchase-money,  reduce  the  recovery  of  the  plaintiff  to  whatever 
sum  the  jur}"-  might  think  the  real  worth  of  the  commodity  ;  but  even  went 
so  far  as  to  assert,  that  in  an  action  expressly  laid  in  tort,  the  averment  of  a . 
scienter  would  be  unnecessary.     1  Nott  &  M'Cord,  142.    ■ 

In  thus  completely  disregarding  the  common  law,  his  honour  would 
appear  to  huve  gone  further  than  the  authorities  in  his  own  state,  either 
before  or  since,  will  support  him;  and,  in  a  subsequent  decision,  the  doc- 
trine of  implied- warranty  was  restricted  to  those  instances  in  which,  as  in 
the  purchase  of  bales  of  cotton,  no  opportunity  is  afforded  for  examination. 
Rose  V.  Beattie,  2  Nott  &  M'Cord,  539.  The  rule  of  the  civil  lavv",  as  con- 
tended for  in  Bernard  v.  Yeates,  is,  however,  fully  adopted  in  Louisiana; 
and  where  defects  exist,  rendering  the  thing  sold  unsuitable  for  the  object 
intended  in  the  purchase,  the  seller  will  be  obliged  to  take  it  back,  though 
ignorant  of  their  existence,  and  although  the  buyer  had  full  opportunity 
afforded  him  for  examination.  Melancon  v.  Robichaux,  17  Louisiana 
Reports,  101. 

The  general  consent  of  English  authority  has  been  strongly  in  favour  of 
the  proposition  that  on  the  sale  of  a  specific  chattel  or  parcel  of  merchan- 
dise, no  warranty  is  to  be  implied;  Parkinson  v*  Lee,  2  East,  314;  La 
Ne.uville  v.  Nourse,  3  Camp..  351,  Bluett  v.  Osborne,  1  Starkie,  384  ;  and 
this  rule  has  been  held  to  apply  even  where  the  sale  has  been  transacted 
.by  words  of  general  description,  and  not  by  the  designation  of  any  particular 
.article  ;.  Gray  v.  Cox,  4  B.  &  C.  108. 

Biit  there  have  been  a  number  of  decisions  in  which  the  doctrine  has 
been  asserted,  that  if  the  purchase  be  shown  to  have  been  made  for  a  parti- 
cular purpose,  communicated  at  the  time  to  the  vendor,  which  the  goods 
when  delivered  prove  not  to  answer,  an  action  on  the  case  averring  a 
fraudulent  sale,  may  be  supported  against  him  without  other  evidence,  and 
without  the  averment  or  proof  of  any  knowledge  of  the  defect  on  the  part 
of  the  defendant.     In  the  case  of  Williamson  v.  Alison,  2  East,-  446,  the 


CHANDELOR    V.    L  0  P  U  Si  187 

averments  Were,  that  the  plaintifThad  purchased  claret  for  exportation  to  the 
East  Indies,  and  that  the  defendant  had  fraudulently  sold  it  with  a  know- 
ledge of  its  unfitness  for  exportation.  No  evidence  was  given  in  support  of 
this  later  averment';  but  it  was  held,  that  as  the  declaration  would  have  been 
good  without  a  scienter,  it  might  be  treated  as  surplusage,  and  a  verdict 
found  for  the  plaintiff  on  the  facts  appearing  on  the. rest  of  the  pleading. 
This  case  was  followed  in  Jones  v.  Bright,  5  Bing.  533,  where  the  defend- 
ant, who  had  sold-  shieathing  copper,  manufactured  by  himself,  to.  the  plain- 
tiff, for  the  purpose  of  being  used  onthe  bottom  of  a  vessel  belonging  to  the 
latter,  was  held  liable  in  an  action  on  the  case  for  deceit,  on  evidence  of  these 
facts,  and  that  the  copper  had  pxoved  unfit  for  the  object  for  which  it  was 
sold.  In  the  more  recent  decision  of  Brown  v.  Edgington,"3  M.  &  G.  279,  the 
defendant,  who  held  himself  out  as  being  what  he  was  not  in  reality,  a  rope- 
maker,  had  undertaken,  as  such,  to  manufacture  a  rope- which  he  knew  was 
to  be  employed  in  raising  heavj^  weights.  The  rope  was,  however,  made  in 
in  point  of  fact,  by  a  third  person  not  ia  his  etfiploy,  and  when  delivered, 
proved  wholly  defective,  by  breaking  under  the  weight  of  a  cask  of  wine, 
which  was  consequently  lost.  Under  these  circumstances,  it  was  deter- 
mined, that  a  declaration  on  the  case,  averring^  a  fraudulent  warranty  of  the 
fitness  of  the  rope  fox  the  purpose  for  which  it  was  designed  by  the  plaintiff, 
and  the  injury  resulting  to, the  latter  from  the  purchase,  on  the  faith  of  such 
Warranty,  was  sustained  by  the  evidence,  and  would  entitle  the  plaintiff  to 
recover,  not  only  for  the  deficiency  in  value  of  the  rope,  but'  consequential 
damages  for  the  loss  of  the  wine.  •. 

■  In  each  of  these  cases  the  breach  of  the  implied  warranty  was  relied  on 
as  the  ground  of  the  action,  and- it  js  obvious  that  it  might  equally  have  been 
supported  had  the  warranty  been  express.  The  question  is^  therefore  pre- 
sented as  to  the  evidence  necessaty  to  support  an  action  Of  tort  upon  a  false 
affirmation  made  in  the  form  of. a  warranty,  and  not  of  a  mere  representation. 
Originally  actions  upon  breaches  of  warranty,  as  well  as  of  all  other  pro- 
mises, were  substantially,  as  well  as  nominally,  actions  on  the  .case,  which 
went  upon  the  ground  of  deceit,  and  sot  forth  the.  undertaking  of  the 
defendant,  and  the  consideration  by  which  it  was  supported,  for  the  purpose  of 
establishing  a  fraud  on  his  part,  and  a  consequent  legal  injury  to  the  plaintiff. 
But  in  modern  times  the  distinction  between  assumpsit  arid  case  has 
become  as  well  established  as  that  between  trespass  and  covenant,  and  it  is 
not  easy  to  see  why  it  should  be  disregarded  in  the  single  instance  of  actions 
such  as  those  we  have  just  been  considering.  In  Brown  v.  Edgington  the 
facts  were  sufficient  to  show  actual  fraud  OT- gross  negligence,  and  the 
defendant  was  beyond  doubt  rightly,  held  liable  in  tort ;  but  in  Williamson  v. 
Allison,  no  evidence  to  that  effect  was  given,  and  it  would  appear  from. the 
case  as  reported,  that  the  wrong  finally  rested  with  the  buyer  andnot  with 
the  seller.  The  true  ground  of  these  decisions  is  undoubtedly  the  pre- 
sumption against  a  party  who  sells  goods  for  a  purpose  for  which  they  are 
not  fit ;  and  no  doubt  if  this  be  done  wilfully,  he  is  guilty  of  actual  fraud, 
and  may  therefore  be  made  answerable  for  it.  But  the  question  is,  whether 
he  can  be  made  liable  as  for  a  tort  where  the  whole  transaction  has.-  taken 
place  ignorantly,  and  therefore  innocently,  on  his  part, -as  we  must  presume 
that  it  did  in  the  case  of  the  wine  merchant  above  cited  from  East,  in  which  •• 
the  scienter  was  treated  as  surplusage.  Where  no  warranty  is  alleged,  it  is 
well  settled  that  there  can  be  no  recovery  for  false  representations  made  in 


188  smith's  leading   cases. 

the  course  of  a  sale  unless  they  were  knmvn  to  be  such  by  the  vendor ;  and 
in  Freeman  v.  Baker,  5  B,  &  Ad.  797,  it  was  held,  that  in  such  cases  the 
ground  of  deceit  is  disposed  of,  when  the  existence  of  the  defect  is  found 
by  the  jury,  to  have  been  unknown  to  the  defendant. 

There  would  seem  no  reason  to  doubt  that,  where  the  declaration  on  the 
warranty  is  in  assumpsit,  the  defendant  may  be  entitled  to  aver  and  prove, 
as  in  Stuart  V.  Wilkins,  1  Douglas,  18,  that  the  breach  was  wilful  and 
fraudulent,  in  aggravation  of  damages,  and  such,  indeed,  were  the  -old  pre- 
cedents in  that  action,  under  all  circumstances.  But  in  the  case  of  The 
Executors  of  Evertsonv.  Miles,  6  Johnson,  138,  where  the  plaintifl" declared 
on  an  undertaking  by  the  defendant  that  a  horse  sold  by  the  latter  was  gentle 
in  harness,  and  attempted  to  support  it  by  proof,  not  of  a  warranty,  but  of 
representations  to  that  effect,  made  with  a  knowledge  that  they  were  untrue, 
it  was  held  that  such  evidence  was  inadmissible,  unless  the  declaration  were 
laid  in  tort,  and  the  scienter  averred.  In  Stone  v.  Denny,  4  Metcalf,  151,  the 
action  was  for  deceit  in  the  sale  of  goods,  and  a  false  representation  on  the  part 
of  the  vendor  was  averred  as  the  substance  of  the  complaint.  It  was,  however, 
decided,  that  in  order  to  recover,  the  plaintiff  must  assert  by  averment,  and 
establish  by  proof,  that  the  defendant  was  aware  of  the  falsehood  of  his  repre- 
sentations at  the  time  of  making  them.  Such,  indeed,  is  now  the  well-estab- 
lished law,  both  of  this  country  and  England,  with  regard  to  all  actions  on 
the  case  grounded  merely  on  the  false  representations  of  the  defendant.  (Infra, 
190.)  The  only  point,  therefore,  left  open  is,  whether  the  fact  that  the  repre- 
sentation has  been  made  in  the  form  of  a  warranty,  can  make  any  difference 
as  it  regards  the  liability  of  the  defendant  in  tort."  As  to  this,  it  would  appear, 
that  the  presumption  of  moral  fraud  is  less  strong  against  a  party  who  gives  a 
positive  undertaking  in  the  course  of  a  sale,  for  that  which  afterwards  turns 
out  untrue  in  point  of  fact,  than  against  one  who  makes  a  naked  representa- 
tion to  the  same  effect,  since  in  the  former  case  he  must  be  aware  that  he  is 
incurring  a  responsibility  for  the  correctness  of  his  assertions,  w-hich  in  the 
latter  he  might  hope  to  evade,  and  in  the  absence  of  proof  of  a. wilful  false- 
hood, ought  not  to  incur.  ,  It  is  at  all  events  obvious,  that  an  action  on  the 
case  supported  by  evidence  of  a  breach  of  warranty,  must  in  alk respects 
stand  upon  the  same  footing  as  it  regards  every  thing -else  than  the  form  of 
the  pleadings,  wiih  an  action  of  a:ssumpsit  brought  for  the  same  cause,  and 
that  a  recovery  in  one  would  therefore  of  necessity  be  a  bar  to  any  subse- 
quent proceedings  in  the  other  ;  Salem  India  Rubber  Co.  v.  Adams,  23  Pick. 
256.  266. 

Without  entering  into  the  question  whether  the  form  of  an  action 
under  such  circumstances  should  be  in  tort  or  contract,  the  English  courts 
have  of  late  imposed  some  very'necessary  restrictions  upon  the  application 
of  the  doctrine  of  implied  warranty,  as  arising  out  of  the  knowledge  of  the 
seller,  of  the  object  for  which  the  purchase  is. intended  by  the  buyer.  It  is 
true,  that  in  Shepherd  v.  Pybus,  3  M.  &  G.  867,  the  Court  of  Common 
Pleas,  in  determining  the  somewhat  obvious  point,  that  where  a  barge  was 
sold  by  the  defendant  under  an  executed  contract  of  sale,  without  warranty, 
and  with  full  opportunitj'-  given  for  inspection,  he  could  not  be  liable  in  an 
action  of  tort,  if  she  were  fit  for  ordinary  use,  although  not  fit  for  a  special 
purpose  not  communicated  by  the  purchaser,  also  held,  that  if  the  barge  were 
not  fit  to  be  used  in  the  ordinary  way,  the  latter  would  be  entitled  to  recover. 
But  in  the  preceding  case  of  Chanter  v.  Hopkins,  4  M.  &  W.  399,  it  had 


CHANDELOR    V.     LOPITS.  189 

been  decided  that  whatever  the  law  may  be  where  the  insufficiency  of  the 
thing  sold,  for  the  object  of  the  purchase,  arises  frorn  a  defect  of  quality 
or  construction  not  inseparable  from  its  nature,  yet  that  the  vendor  cannot  be 
made  answerable  for  anything  more  than  for  furnishing  that  which  he  has 
contracted  to  sell,  as  designated  by  the  vendee.  In  that  case,  the  defendant 
had  agreed  to  put  up  for  the  plaimifTa  new  patent  smoke-consuming  fur- 
nace, which  proved,  when  erected,  instead  of  having  the  advantages  it  was 
supposed  to  possess,  to  be  more  .expensive  and  troublesome  than  the  fur- 
naces commonly  in  use.  But  it  was  held  by  Lord  Abinger  that  this  merely 
amounted  to  the  "ordinary  case  of  a  man  who  has  had  the  misfortune  to 
order  a  particular  chattel,  on  the  supposition  that  it  would  answer  a  particu- 
lar purpose,  which  he  finds  it  will  not,"  and  that  the  plaintiff  was  not  entitled 
to   recover. 

The  same  point  again  arose  in  Olivant  v.  Bayley,  5  Q,.  B.,  288. 
The  plaintiff  there  brought  indebitatus  assumpsit,  to  recover  the  price  of 
work  and  labour  done  and  materials  furnished  by  him,  under  a  contract  to 
put  up  for  the  defendant  a  two  colour  printing  machine,  upon  a  principle 
patented  by  the  plaintiff,  and  similar  to  one  then  in  operation  in  the  plaintiff's 
shop,  constructed  on  a  principle  for  which  he  had  obtained  a  patent.  The 
defence  set  up  was,  that  the  machine  had  been  purchased  by  the  defendant, 
and  sold  by  the  plaintiff  j  expressly  for  the  purpose  of  printing  in  two  colours, 
for  which,  upon  trial,  it  had  proved  wholly  unserviceable.  Under  these  cir- 
cumstances it  was  held,  if  the  machine  in  question  were  a  "  known  and 
ascertained  article,"  and  the  defect  was  not  in  the  workmanship,  but  in  the 
principle  on  which  it  was  constructed,  the  plaintiff,  although  both  maker  and 
inventor,  was  not  answerable  for  its  fitness  for  the  purpose  of  the  buyer,  and 
was  entitledto  recover  the  full  price  originally  agreed  to  be  given  by  the 
latter.  The  case  of  Camac  v.  Warriner,  C.  B.  356,  is  to  the  sarhe  effect, 
although  the  decision  there  was  entangled  with  considerations  merely  arising 
out  of  the  particular  pleadings. 

It  must  be  obvious,  hoAvever,  that  there  are  other  principles  of  law,  col- 
lateral with  those  of  which  we  have  been  treating,  and  capable  in  certain 
cases,  of  extending  their  operation  so  as  to  embrace  within  their  limits, 
subjects  of  controversy,  which,  at  first  sight,  might  appear  to  be  questions 
merely  turning  on  the  absence  or  presence  of  a  contract  of  warranty.  In 
the  first  place  fraud,  when  coupled  with  the  execution  or  formation  of  an 
act,  or  contract,  in  all  cases  vitiates  it  at  common  law.  If,  therefore,  the 
vendor  fraudulently  misrepresent  the  quality  of  his  goods,  in  a  material 
point,  and  thereby  induce  the  vendee  to  enter  into  a  contract  of  purchase, 
such  contract  is  voidable,  and  of  course  not  obligatory  upon  the  latter ;  and 
he  may,  thereupon,  either  return  the  goods  and  sue  the  vendor  for  the  pur- 
chase-money, if  paid,  or  keep  them,  and  give  the  fraud  in  evidence  to 
diminish  or  defeat  a  recovery,  in  a  suit  brought  to  enforce  a. payment. 
Thayer  v.  Turner,  8  Metcalf,  550.  Hazard  v.  Irwin,  18  Pick.  95  •  Kim- 
ball V.  Cunningham,  4  Mass.  504. 

Even  where  the  vendee  has,  in  a  sale  vitiated  by  fraud,  affirmed  the  con- 
tract by  using  the  goods,  and  has  paid  the  purchase-money,  he  is  not  left 
without  remedy,  since,  as  has  been  already  stated,  he  may  have  recourse  to 
an  action  on  the  case  for  deceit ;  and,  on  proof  that  in  making  the  purchase, 
he  relied  on  false  statements  wilfully  made  by  the  vendor,  he  will  be  enti- 


190  SMITH.' S    LE  ADIN.G    «ASES. 

tied  to  full  compensation  in  damages,,  for" whatever  injury  he- may  have  sus>- 
tained.  Harrington  v.  Stratton,  •22  Pick.  510,  In.or-derto  support  this 
form  of  action,  however,  it  is  essentially  necessary,  that  the  scienter  should 
be  fully  proved:  and  it. will  not  be  sufficient  to  show,  that  the  defendant 
made  statements  which  he  did  not  "know  to  .be.truej  and  which,  in  point  of 
fact,  were  false.  Cornfoot  y.  Fovvke;;  6  M.  &  W.  -358  ;  Taylor  v.  Ash- 
ton,  11  id.  401;  Russel.v.  Clarke's- executors,  7  Cranch,  69;  Wilson 
v.  Fuller,  3  a.  B.  G8 ;  Collins  v.  Evans,  5  Qi.  B.  819  ;  Ti70n  v.  Whit- 
marsh,  1  Metcalf,  1.  But  if  the  aveTrmenls -of  the  defendant  were  expressly 
made,  as  if  of  his  own  knowledge,  and,-not  as  mere  general  assertions, 
it  will  then  be  sufficient  to  prove  that  he.  had  not,,  and  could  not  have 
had,  such  knowledge;  and  in  that  ciasp,  his  fraudulent' assertion  that  he 
possessed  it,  will  be  sufficient  to  make  him  liable  under  the  scienter.  Hazard 
V.  Irwin,  18  Pick.  95.  Moreover,  in  addition  to  fraud  on  tire  part  of 
the  defendant,  the  plaintiff  must  prove  injury  to  himself.  If,  therefore,  he 
has  full  opportunity  afforded  him,  for  ascertaining  the  defect,  and  it  is  pf  a' 
nature  to  be  ascertained,  it  would  seem  that  he  ought  not  to  be  presumed  to 
have  been  influenced  or  injured,  by  the  falsehood  of  the  defendant's  repre- 
sentations; although  it  was  said,  that  if  they  were  accompanied  by  a  war^ 
ranty,  the  vendee  might  be  supposed,  in  reliance  upon  that,  not  to.  hav-e 
examined  for  himself,  and,  therefore  "to  have"  been  injured  by  the  fraud. 
India  Rubber  Co,  V.  Addams,  23  Pick.  265.  ■ . 

The  case  of  Van  Bracklin  v.  Fonda,  12  John.  468,  has  heeri  sometimes 
treated  as  establishing  the  proposition,  that  on  a  sale  of  provisions  for. 
domestic,  use,  there  is  an  implied  \vaTranty  that  they  are  sound  and  whole- 
some ;  but  it  is  more  in  point  to  prove,  that  an  action  on  the  case  for  a 
deceit,  may  in  such  case,  be  sustained,  on  proving  that  the  vendor  knew 
them  to  be  unsound,  without  other  proof  that  they  Were  represented  as 
sound,  than  the  circumstances  of  the  sale,  which  are  in  themselves  an 
affirmation  of  soundness.  This  is  evident  from  the  case  of  Emerson  v. 
Brigham,  10  Mass.  199,  where  it  was  held,  that  no  warranty  of  soundness 
or  quality  was  to  be  implied,  either  on  the  sale  of  provisions,  or  of  any 
other  merchandise ;  and  that,  when  an  action  on  the  case  for  the  deceit, 
was  brought  against  the  defendant,  for  selling  salt  beef  in  casks,  in  a  state 
not  fit  for  food,  the  scienter  must  be  proved,  as  in  all  other  cases  of  the  same 
sort;  although,  on  such  proof,  from  the  nature,  of  the  aTlicle  sold,  there 
would  be  sufficient  evidence  of  fraud  against  the  defendant,  independently 
of  any  affirmation  as  to  its  goodness.  This  view  of  the  subject  is  confinned  by 
the  ground  taken  in  the  subsequent  cases  of  Winsor  v.  Lombard,  18  Pick. 
37i  and  Moses  v.  Read,  1  Denio,  378,  where  it  was  also  held,  that  whatever 
the  presumption  with  regard  to  the  sale  of  provisions  for  domestic  use,  it 
does  not  apply  where  they  are  sold  as  mere  merchandise,  and  for  the  general 
purposes  of  commerce. 

It  must  also  be  evident,  that  even  where  there  is  no  fraudulent  misrepre- 
sentation avoiding  a  sale,  it  is  only  in  so  far  binding  on  the  vendee,-  as  its 
execution  may  be  tendered  or  completed  by  the  vendor,  and  that  the  latter 
cannot  call  for  the  purchase-njoney,  without  proffering  what  the  former  has 
agreed  to  buy. 

This  principle  is  so  obvious,  that  wherever  it  applies,  there  can  be  no 
doubt  as  to  its  effect ;  and  the  only  difficulty  consists  in  determining  what 


CHAN  DE  LOR    V.     LOPUSi  191 

cases  admit  of  its  application.  King  v.  Paddocif,  18.  Johns.  141  ;  Howard 
V.  Hoey,  23  Wend.  250  ;  Wright  v.  Barnes,  14  Connecticut  Reports,  518  ; 
doling  v.  Cole,  3  Bing.  N.  C.  724;  Bridge  v.  Wain,  1  Starkie,.  504. 
But  where  the  vendee  does  not  see  and  specifically  distinguish  the  goods, 
or  where  he  purchases  on  seeing  merely  a  sample,  it  must  everywhere 
be  adntitted  that  the-  nature  of  that  which  he  has.  agieed  to  buy,  is  tobe 
inferred,  in  the  one  case,  from  the  words  of  description  used  in  the  con- 
tract of  sale  ;  in  the  other,  from  the  nature  of  the  sample  exhibited. 
'.  It  follows  therefore,  that  although  properly  speaking,  there  is  no  war- 
ranty of  quality  on  a  sale  by  sample,  yet  that  to  execute  the  contract,  and 
render  the  vendee  liable,  the  goods  delivered  must  correspond  with  the 
sample.  If.  there  be  a  material  difference  in  quality,  -the  latter  in  refusing 
to  receive  the  goods,  oj*  ntiaking  a  tender  of  return  where. they  have  already 
coine.  into  his  hands,  may  resist  the  payment  of  the  purchase-money,  pr 
recover  it  if  paid.  Even  where  he  has  received  and  used  the  goods,  on 
bringiiig  suit  against  the  vendor,  and  averring  in  his  declaj'ati.on  a. contract 
to  sell  -merchandise  of  like  quality  with  the  sample,  and-  a  breach  of  such 
contractj  he  will  be  entitled  to  recover  whatever  damage  he  has  sustained 
•by  the  inferior,  quality  of  thegoods  actually  dehvered.  Oneida  Manufac- 
t.uring.Co.  v.  Lawrence,  4  Cowen,  440  ;  Andrews  v.  Kneeland,  6  Cowen, 
■354 ;.  Gallagher  v.  Waring,  9  Wend.  20 ;  Boorman  v.  Johnston,  12- 
Wend.  568;  Beebee,  v.  Robert,  12  Wend.  413;  Waring  v.  Mason,  18 
Weiid.  425.  In  like  manner,  the  courts  of  iVlassachusetts  hold,  that  where 
there  has  been  a.  sale  by  sample,  the  vendor  must  be  understood  to  have 
contracted  to  sell  and  deliver  goods,  corresponding  in  kind  and  quality  with 
the  sample ;  and  that  if  "articles  of  different  character,  or  inferior  quality, 
be  delivered,  there  is  a  breach  of  contract  on  his  part,  for  Which  he  may  be 
made-  liable  in  damages.  Bradford  v.  Manly,  13  Mass.  139 ;  Williams  v. 
Spafford,  8  Pick.  250. 

The  general  doctrine,  that  when  a  vendor  does  hot  fulfil  his  contract  of 
sale,  by  tendering  that  which  has  formed  the  subject-matter  of  the  contract, 
the  vendee,  may  either  1-etain  or  recover  the  purchase-money,  is,  of  course, 
recognized  in  Pennsylvania;  and-  in  Borrekins  v.  Bevan,  3  Rawle,  23,  it 
was  applied  to  the  case  of  sales  by  sample. 

In  that  case,  however,  the  majorit)'-  of  the  court,  while  of  opinion  that  the 
sale  had  been  in  the  particular  instance  by  Sample,  went  farther,  and  held, 
that  in  all  cases,  whether  the  purchaser  examined  the  goods  or  not,  the  sub- 
ject-matter of  the  sale  was  to  be  ascertained  by  the  terms  of  the  contract; 
and  that  if  the  articles  delivered  did  not  correspond  with. those  terms  in 
specie,  there  was  no  valid  execution  by  the  vendor,  or  obligation  on 
the  part  of  the  vendee.  In  the  words  of  Rogeks,  J.,  who  delivered  the 
opinion  of  the  court,  when  the  goods  delivered  "  do  not  correspond  in 
kind,  the  purchaser  has  a  right  to  say,  this  is  not  the  article  I  contracted 
for,  non  in  ha3C  foedera  veni;  and  this,  whether- he  complains  at  the 
time  of  the  delivery,  or  after,  unless  his  conduct  amour^ts  to  a  waiver  of 
indemnity."  In  illustration  of  this,  view  of  the  law,  as  taken  by  the  court, 
he  put  the  case  of  a  purchaser. at  a  wineshop  who  should  ask  for  Madeira; 
and  held  that  he  would  not  be  obliged  to  accept  Teneriffe,  sold  and  delivered 
to  him  by  the  wine  merchant  as  Madeira,  although  tasted  at  the  time  of 
making  the  sale.     Ffoitx  the  opinion  of  the  court  so  far  as  it  held  that  to 


193  smith's     LEADING     CASES. 

execute  a  contract  of  sale  in  a  case  free  from  fraud,  there  must  be  a  delivery 
corresponding  in  specie  with  the  terras  of  the  contract,  and  not  merely  with 
the  actual  subject-matter  contracted  for,  as  seen  by  the  vendor  or  his  agents, 
Gibson,  C.  J.,  and  KENNE^y,  J.,  dissented. 

The  same  general  course  of  reasoning  was  pursued  by  the  Supreme 
Court  of  Massachusetts,  in  the  case  of  Hastings  v.  Lovering,  2  Pick.  214. 
Tt  there  appeared  by  the  wording  of  the  contract,  as  gathered  from  the  bill 
of  sale  and  the  evidence  before  the  court,  that  the  defendant  had  agreed  to 
sell  the  plaintiff  prime  winter  sperm  oil,  and  it  was  held  that  the  delivery  of 
summer-strained  oil  would  not  satisfy  the  terms  of  the  contract,  and  that  the 
buyer  was  therefore  entitled,  to  recover  from  the  seller,  damages  for  the  breach 
thus  incurred.  A^  it  appeared  that  the  oil  was,  at  the  time  of  the  sale,  at  a 
.dfstance  of  many  miles  from  the  place  where  it  was  made,  it  would  seem 
that  the  court  was  fully  justified  in  looking  closely  to  the  terms  of  the  sale, 
as  the  means  of  discovering  the  nature  of  the  article  to  which  it  related, 
and  in  holding  that  the  contract  was  not  performed,  by  the  delivery  of  a 
thing  substantially  different  from  that,  which  those  terms  designated. 

That  such  is  the  true  explanation  of  the  decision  ia  Hastings  v. 
Lovering,  is  shown  by  the  opinion  delivered  by  the  Supreme  Court  of 
Massachusetts,  in  the  subsequent  case  of  Winsor  v.  Lombard,  18  Pick.  57. 
The  plaintiff  had  there  purchased  several  kegs  of  salt  mackarel,  described 
in  the  bill  of  parcels  as  No.  1  and  No.  2,  but  which  proved  on. examination 
to  be  of  very  inferior  quality  and  much  damaged  by  rust,  though  not 
wholly  unmerchantable.  Under  these  circumstances,  it  was  held,  that  the 
action  could  not  be  maintained,  as  there  was  no  ground -for  implying  a  war- 
ranty of  quality,  and  the  substance  of  the  contract  was  satisfied  by  the 
delivery  of  fish  which  had  been  inspected  and  branded  in  a  manner  to 
correspond  with  the-forms  of  the  description,  even  if  they  had  deteriorated 
in  condition  before  the  sale.  ■ 

In  the  subsequent  case  of  Jennings  v.  Gratz,  3  Rawle,  168,  the  decision 
in  Borrckins  v.  Bevan,  was  held  by  the  Supreme  Court  of  Pennsylvania, 
only  to  apply  where  the  article  delivered,  totally  failed  to  correspond  in 
specie  with  the  terms  of  the  contract  of  sale,  and  not  where  the  defect  was 
substantially^  one  of  quality,  although  produced  by  adulteration,  or  the  partial 
admixture  of  a  different  substance. 

Even  when  regarded  under  this  point  of  view,  the  opinion  of  the  majority  of 
the  court,in  Borrekins  v.  Bevan,  must  be  regarded  as  directly  at  variance  with 
the  New  York  decisions  in  Seixas  v.  Woods,  Swett  v.  Colgate,  and  Holden  v, 
Dakin.  In  thelatter  of  these,  except  with  regard  to  the  question  of  sample,  the 
facts  were  entirely  similar  to  those  of  the  Pennsylvania  case.  In  both  instances, 
the  vendees  had  purchased  under  the  appellations  of  Spanish  brown,  and 
white  lead,  or  of  blue,  green,  and  white  paint,  substances  differing  chemi- 
cally, from  the  articles,  of  which  they  bore  the  names,  of  much  less  value, 
and  which,  as  it  appeared,  did  not  deserve  to  be  called  paints  at  all.  But 
as  we  have  seen  in  Holden  v.  Dakin,  it  was  held,  that  the  vendee  could  not 
avoid  the  contract,  or  maintain  an  action  for  the  variance  between  the  terms 
of  sale  and  the  character  of  the  articles  delivered,  while  the  opinion  of  the 
majority  of  the  court  in  Borrekins  v.  Bevan,  was  the  other  way. 

The  general  principle  contended  for  in  the  case  of  Borrekins  v.  Bevan, 


CHANDELOR    V.     LOPUS.  193 

was,  however,  the  same  with  that  assumed  in  all  the  New  York  cases  of 
sales  by  sample,  and  merely  amounted  to  holding,  that  the  vendor,  in  order 
to  charge  the  vendee,  must  deliver  that  which  he  contracted  to  sell,  and  not 
any  thino-  else.  The  variance  between  the  courts  of  the  two  states,  was  thus 
merely  one  of  application,  and  arose  from  a  difference  as  to  the  character  of 
the  evidence,  to  be  employed  in  determining  the  nature  of  that  which  the 
vendor  had  intended  to  sell,  and  the  vendee  to  buy.  In  Pennsylvania  it 
was  held,  that  to  discover  this,  the  court  would  look  to  the  language  of  the 
parties,  and  the  terms  of  the  contract ;  while  in  New  York  it  was  decided, 
in  accordance  with  Chandelor  v.  Lopus,  that  where  the  parties  saw,  or  had 
an  opportunity  of  seeing  the  thing  sold,  it  was  to  be  presumed  that  the 
intention  of  sale  and  purchase  related  to  it,  such  as  it  was  seen  at  the  time 
of  the  sale,  and  not  to  any  thing  else,  although  designated  by  the  words 
employed  in  making  the  bargain.  Whichever  view  be  taken  of  the  appli- 
cation of  the  general  principle,  and  whether  it  be  restricted  to  sales  by 
sample,  or  extended  to  all  cases,  in  which  the  articles  delivered  under  a 
contract  of  sale,  do  not  accord  with  the  terms  employed  by  buyer  and  seller, 
in  forming  that  contract,  it  must  be  obvious,  that  it  does  not  contradict,  or 
even  qualify,  the  doctrine  laid  down  in  Chandelor  v.  Lopus,  and  cannot 
properly  be  considered  as  raising  an  implied  warranty,  when  no  express 
agreement  to  that  effect  has  been  made. 

It  is  probable,  that,  in  all  cases  where,  on  a  contract  of  sale,  there  is  no 
possibility  of  seeing  or  examining  the  goods,  on  the  part  of  the  buyer  or 
his  agents,  it  would  be  generally  admitted,  that  in  order  to  determine  the 
subject-matter  of  the  contract,  reference  must  be  had  to  its  terms ;  and  that 
whether  in  the  case  of  an  agreement  to  sell  a  Bezoar  stone,  as  in  Chandelor 
V.  Lopus,  or  barilla,  as  in  Swett  v.  Colgate,  the  buyer  could  not  be  made 
liable  for  the  purchase-money  on  a  tender  of  any  thing  substantially  different 
from  that  which  he  contracted  to  purchase. 

It  would  appear  that  the  judgment  given  by  the  Supreme  Court  of 
Massachusetts,  in  the  case  of  Hastings  v.  Lovering,  turned  somewhat  upon 
this  distinction,  as  to  the  effect  of  an  entire  want  of  opportunity  for  exami- 
nation on  the  part  of  the  vendee,  although  the  general  course  of  reasoning 
followed  in  the  opinion  there  delivered,  coincides  with  that  adopted  by  the 
Supreme  Court  of  Pennsylvania,  in  the  case  of  Borrekins  v.  Bevan. 

In  the  case  of  Osgood  v.  Lewis,  2  Harris  &  Gill,  495,  it  was,  however, 
held  by  the  Maryland  Court  of  Appeals,  that  in  the  absence  of  express  war- 
ranty, there  was  a  breach  of  contract,  for  which  the  vendee  was  entitled  to 
recover  damages,  where,  upon  a  bargain  for  the  purchase  of  winter  sperm 
oil,  and  a  bill  of  sale  in  which  that  term  was  employed,  summer-strained 
oil  was  delivered.  This  case  differed  from  that  cited  above,  as  decided 
upon  a  similar  slate  of  facts  in  Massachusetts,  in  a  very  material  circum- 
stance, since  the  oil  was  lying  at  the  wharf  when  sold,  and  might  therefore 
have  been  examined  by  the  purchaser.  Even  here,  however,  there  was  no 
abandonment  of  the  distinction,  that  the  terms  of  the  contract  are  not  to  be 
resorted  to,  save  where  it  is  impossible  that  the  purchaser  should  have 
known  that  the  article  he  contracted  to  buy,  was  not  specifically  that  which 
the  words  employed  in  forming  the  contract  designated,  since  it  was  shown 
that  the  difference  between  the  two  sorts  of  oils,  though  one  of  chemical 
composition,  could  not  be  discovered  in  ordinary  weather,  by  the  most  care- 

VoL.  I.— 13 


194  smith's   leading   cases. 

ful  inspection,  nor  without  resorting  to  the  aid  of  analytical  experiment.  But 
whatever  may  be  thought  of  the  tendency  of  (his  case,  it  was  emphatically 
declared  in  a  subsequent  decision  in  the  same  state,  that  no  warranty  of 
quality  or  condition  was  to  be  presumed,  even  where  the  defect  existed  in  the 
interior  of  the  kegs  in  which  the  commodity  was  packed,  and  could  not  be 
discovered  by  inspection,  without  opening  and  unpacking  the  kegs.  It  vi'as 
further  held,  in  the  same  case,  that  no  exception  to  the  ordinary  rule  of 
caveat  emptor  arose,  save  where  the  inspection  was,  morally  speaking, 
impossible,  as  in  the  case  of  goods  not  yet  arrived  or  landed.  Hyatt  v.  Boyle, 
5  Gill  &  Johns.  110. 

It  would  appear  on  the  whole,  that  by  far  the  greater  weight  of  authority 
is  now  in  favour  of  the  proposition,  that  the  court  will  look  to  the  language 
of  the  parties,  and  more  especially  to  the  written  evidence  of  the  contract, 
for  the  purpose  of  discovering  what  has  been  its  subject-matter.  When  this 
has  once  been  ascertained,  it  will  of  course  determine  the  construction  to  be 
put  on  the  whole  matter;  and  in  some  instances,  even  where  the  parties 
obviously  supposed  themselves  to  have  concluded  an  executed  contract  of 
sale  passing  the  property  in  a  specific  chattel,  the  transaction  has  been  held 
open  and  unperformed,  on  its  appearing  that  the  understanding  between 
them  related  to  something  substantially  different  from  the  chattel  specified, 
and  that  it  was  merely  referred  to  as  a  means  of  giving  effect  to  a  more 
general  intention. 

■.  The  recent  case  of  Henslow  v.  Robbins,  9  Metcalf,  53,  fully  supports  these 
propositions,  and  is  in  accordance  with  the  English  authorities,  and  with 
the  decisions  in  Borrekins  v.  Bevans,  Hastings  v.  Levering,  and  Osgood  v. 
Lewis.  The  doctrine  of  these  cases,  and  not  that  of  Seixas  v.  Woods  and 
Swell  v.  Colgate,  would  now,  in  all  probability,  be  followed  on  this  point  in 
New  York,  where  the  courts,  since  the  period  of  those  earlier  determina- 
tions, have  held  that  even  mere  verbal  assertions  made  in  the  course  of  the 
bargain  might  be  found  by  the  jury  to  constitute  part  of  the  contract. 

Where  the  question  is  one  of  identitjs  as  between  that  Avhich  it  was  the 
understood  intention  of  the  vendee  to  purchase,  and  that  which  the  vendor 
has  actually  sold,  there  is  obviously  room  for  some  difference  of  opinion  as 
to  the  manner  in  which  it  should  be  solved.  In  Jennings  v.  Gratz,  we  have 
seen  that  this  point  was  held  to  be  satisfied,  if  what  is  delivered  correspond 
in  the  ordinary  and  popular  sense  with  the  species  of  matter  which  the 
vendee  originally  intended  to  buy,  and  it  w^as  then  decided  that  no  infe- 
riority of  preparation,  nor  even  a  partial  admixture  of  other  things  not 
destroying  identity  according  to  the  general  understanding  of  commerce, 
would  render  the  contract  incapable  of  being  carried. into  execution.  But 
the  cases  of  Hastings  v.  Levering,  and  Osgood  v.  Lewis,  cited  above,  go 
farther,  and  render  the  description  of  the  kind  of  merchandise  sold  as  con- 
tained in  the  bill  of  parcels,  part  of  the  contract.  Under  the  doctrine  advanced 
in  them,  as  confirmed  in  Henslow  v.  Robbins,  there  could  have  been  no 
recovery  by  the  vendor  in  Jennings  v.  Gratz,  unless  the  purchase  of  the 
vendee  had  not  merely  turned  out  to  be  tea,  but  that  kind  and  preparation 
of  tea  which  it  had  been  asserted  to  be  in  the  catalogue  of  sale  at  auction, 
unless  indeed  it  w^ere  shown  that  this  criterion  had  been  waived,  and  that 
the  bargain  was  finally  concluded  on  the  basis  of  an  actual  examination,  and 
solely  with  reference  to  the  article  itself,  and  not  to  the  description.     It 


CHANDELOR    V.     LOPUS.  195 

remains  to  be  hereafter  considered  in  what  cases  the  qualification  of  a  con- 
tract of  sale,  which  the  parlies  meant  to  have  executed  by  the  words  of 
description  employed,  goes  to  the  substance  and  identity  of  the  whole  agree- 
ment, and  where  it  is  merely  to  be  regarded  as  an  independent  stipulation 
of  warranty. 

It  may  be  observed,  that  where  tbe  vendor,  by  the  terms  of  the  contract  of 
sale,  was  to  manufacture  the  goods,  no  opportunity  for  examination  can  have 
existed,  and  thus  there  can  be  no  other  source  than  the  words  of  the  con- 
tract, from  whence  to  learn  that  to  which  it  was  intended  to  apply  ;  since 
it  is  evident  that  the  parties  could  not  have  rendered  their  meaning  more 
certain,  as  between  themselves,  by  an  actual  reference  to  what  was  not  in 
existence.  In  such  a  case,  therefore,  there  can  be  no  doubt  that  the  vendee, 
if  the  goods  when  delivered  do  not  correspond,  as  to  the  whole,  or  in  part, 
with  the  terms  of  the  contract,  may  either  rescind  it  altogether,  or  receive 
the  goods,  and  set  up  their  deficiency  in  value,  as  a  defence  pro  tanto  in  a 
suit  for  the  purchase-money.  King  v.  Paddock,  18  Johnson,  141_;  Kellogg 
V.  Denslow,  14  Conn.  411  ;  Wright  v.  Barnes,  Id.  518. 

This  was  the  point  actually  presented  in  the  case  of  Howard  v.  Hoey, 
23  Wend.  350,  where  the  terms  of  the  contract  were  for  the  delivery  of 
good  merchantable  ale,  such  as  the  vendor  was  in  the  habit  of  sending 
south,  and  the  ale  actually  delivered  proved  on  its  arrival  at  New  Orleans 
wholly  unfit  for  use.  But  the  opinion  of  the  court  went  further  than  was 
necessary  for  the  determination  of  the  case  on  the  facts  actually  before  them. 
It  was  fully  admitted,  that  where  the  sale  is  of  a  specific  chattel,  the  agree- 
ment will  always  be  construed  with  reference  to  that  as  its  subject-matter, 
and  will  give  no  remedy  for  defects  of  quality,  unless  where  they  have  been 
guarded  against  by  an  express  warranty.  But  it  was  held,  that  in  the 
absence  of  reference  to  specific  objects,  the  contract  would  be  treated  as 
merely  executory,  and  be  construed  to  mean,  that  the  goods  furnished 
under  it  should  be  of  the  ordinary  merchantable  character,  whether  there 
was  or  was  not  an  express  stipulation  to  that  effect.  The  recovery  of  the 
plaintiffs  was  therefore  confined  to  the  actual  value  of  the  ale,  although 
there  had  been  no  ofi^er  to  return  it  on  the  part  of  the  defendants.  No  reli- 
ance was  placed  on  the  fact,  that  the  goods  were  to  be  manufactured  by  the 
vendor,  except  as  more  distinctly  showing  the  executory  nature  of  his  under- 
taking. Even  under  such  circumstances,  it  is  enough  if  they  correspond 
with  the  terms  of  the  contract;  and  it  would  seem,  that  there  is  no  better 
reason  for  implying  the  existence  of  an  implied  warranty  of  quality  than  in 
any  other  case.  Kirke  v.  Nice,  2  Watts,  367  ;  Kase  v.  John,  10  Id.  109  ; 
Chanter  v.  Hopkins,  4  M.  &  W.  398. 

The  whole  class  of  decisions  proceeding  upon  the  right  of  the  vendee, 
either  to  sue  for  damages  or  rescind  the  contract,  in  those  cases  where  the 
vendor  has  made  fraudulent  misrepresentations,' or  has  broken  his  contract,  by 
not  delivering  in  substance  that  which  he  has  contracted  to  sell,  have  fre- 
quently been  treated  as  cases  of  warranty  ;  and  if  regarded  as  such  would 
give  rise  to  views  of  the  law,  varying  from  those  stated  in  this  note.  On 
examination,  however,  of  the  evidence,  even  where  the  language  of  the 
court  is  of  another  character,  it  will  be  found  that  they  are  really  cases  of 
fraud,  or  entire  breach  of  contract,  and  not  of  warranty. 

This  is  the  more  evident,  since  in  most  of  them  the  right  of  the  buyer, 


196  smith's   leading   cases. 

to  have  avoided  the  contract  at  the  time  of  the  dehvery,  was  admitted,  while 
it  appears  certain  that  a  mere  breach  of  warranty,  unaccompanied  by  fraud, 
or  some  express  stipulation  for  the  purpo.=e,  can  never  entitle  him  to  pursue 
that  course,  or  return  the  goods.  Kase  v.  Johns,  10  Walts,  109  ;  Voorhees 
V.  Earl,  2  Hill,  288 ;  Gary  v.  Gruman,  4  Hill,  626  ;  Thornton  v.  Wynn,  12 
Wheaton,  193  ;  Mondel  v.  Steel,  8  M.  &  W.  858  ;  Street  v.  Blay,  2  B.  & 
A.  456  ;  Gompertz  v.  Denton,  1  Cr.  &  M.  267  ;  Pateshall  v.  Tranter,  3 
Ad.  &  El.  103  ;  Young  v.  Cole,  3  Bing,  N.  C.  724.  It  is  indeed  obvious, 
that  the  numerous  cases  decided,  on  what  is  called  an  implied  warranty 
arising  on  a  sale  by  sample,  in  fact  proceed  upon  this  ground,  that  a 
•vendor  who  has  not  delivered  that  which  he  has  agreed  to  sell,  cannot  sue 
for  the  purchase-money,  and  is  liable  to  an  action  by  the  vendee  for  his 
breach  of  contract.  That  in  these  cases  the  right  of  the  vendee  does  not 
grow  out  of  an  implied  warranty,  but  depends  upon  the  failure  of  the 
vendor  to  execute  the  contract  as  a  whole,  is  evident  moreover  from  the  case 
of  Boorman  v.  Johnston,  12  Wendell,  566,  where  after  the  exhibition  of  a 
sample,  the  contract  was  reduced  to  writing,  and  although  no  warranty, 
express  or  implied,  could  be  collected  from  the  terms  of  the  written  instru- 
ment, it  was  held,  that  the  vendor  was  liable  in  as  far  as  the  quality  of  the 
goods  delivered,  did  not  correspond  with  that  of  the  sample  shown. 

Moreover,  in  the  case  of  sale  by  sample,  the  term  warranty  would  seem 
altogether  misapplied,  since  however  defective  the  quality  of  the  goods  and 
sample,  if  they  correspond  with  each  other,  the  buyer,  unless  on  proof  of 
fraudulent  misrepresentation,  has  no  right  to  complain  or  recover  damages  ; 
while  if  the  civil  law  rule  were  in  fact  applied,  and  a  real  warranty  of  qual- 
ity presumed,  it  is  evident  that  such  warranty  would  extend  both  to  the 
sample  and  the  goods  which  it  represents,  and  would  give  a  right  of  action 
for  a  defect,  although  present  in  both.     Parkinson  v.  Lee,  2  East,  313. 

On  this  head,  the  remarks  of  Lord  Abinger  in  the  case  of  Chanter  v. 
Hopkins,  already  cited,  are  eminently  worthy  of  attention.  His  lordship 
there  said  ;  "  a  good  deal  of  confusion  has  arisen,  from  the  unfortunate  use 
made  of  the  word  'warranty.'  Two  things  have  been  confounded  together. 
A  warrant}''  is  an  express  or  implied  statement  of  some  thing  which  the  party 
undertakes  shall  be  part  of  the  contract ;  and  though  part  of  the  contract,  yet 
collateral  to  the  express  object  of  it.  But  in  many  of  the  cases,  some  of  which 
have  been  referred  to,  the  circumstance  of  a  party  selling  a  particular  thing  by 
its  proper  description,  has  been  called  a  warranty  ;  and  a  breach  of  such  a 
contract,  a  breach  of  warranty  ;  but  it  would  be  better  to  distinguish  such 
cases  as  a  non-compliance  with  a  contract  which  a  party  has  engaged  to 
fulfil ;  as  if  a  man  offers  to  buy  peas  of  another,  and  he  sends  him  beans,  he 
does  not  perform  his  contract ;  but  that  is  not  a  warranty ;  there  is  no 
warranty  that  he  should  sell  him  peas  ;  the  contract  is  to  sell  peas,  and  if 
he  sells  him  any  thing  else  in  their  stead,  it  is  a  non-performance  of  it.  So 
if  a  man  were  to  order  copper  for  sheathing  ships — that  is,  a  particular  cop- 
per, prepared  in  a  particular  manner, — if  the  seller  sends  him  a  diflerent 
sort,  in  that  case  he  does  not  comply  with  the  contract ;  and  though  this 
raay  have  been  considered  a  warranty,  and  may  have  been  ranged  under 
the  class  of  cases  relating  to  warranties,  yet  it  is  not  properly  so." 

•  To  conititute  a  warranty  of  lands,  when  not  implied  from  the  peculiar 


CHANDELOR     V,     LOPUS.  197 

words  or  circumstances  of  the  conveyance,  the  verb  warrantizo,  or  its  modern 
equivalent,  must  be  employed.  But  to  raise  a  warranty  of  qualitj'-  or  spe- 
cie, on  a  sale  of  chattels,  no  particular  phrase  is  necessary  ;  an  apparent 
intention  to  warrant  being  sufficient.  Morrill  v.  Wallace,  9  New  Hamp. 
Ill  ;  Roberts  v.  Morgan  2Cowen,  238.  Thus  in  Chapman  v.  Murch,  19 
John.  290,  where  the  declaration  averred,  "  that  the  defendant  undertook 
and  promised  that  the  horse  was.  sound,"  it  was  held  sufficient  in  point  of 
law,  as  an  averment  of  warranty.  The  question  whether  there  has  been  a 
warranty  or  not,  undoubtedly  depends  upon  the  intention  and  understanding 
of  the  parties,  as  collected  from  their  acts  and  expressions  at  the  time  of  the 
sale  ;  and  where  the  contract  is  not  wholly  in  writing,  it  is  one  of  fact  for 
the  jury,  under  the  direction  of  the  court ;  Whitney  v.  Sutton,  10  Wend. 
413  ;  although  in  this,  as  in  all  other  cases,  where  contrary  to  the  law  or 
the  evidence,  their  verdict  should  be  set  aside  ;  and  ought  not  to  be  sup- 
ported when  finding  a  warranty,  unless  the  evidence  is  sufficient,  expressly 
or  by  implication,  to  establish  its  existence  as  a  part  of  the  contract.  M-Far- 
land  V.  Newman,  9  Watts,  55.  Yet  the  question  has  often  been  left  to  the 
jury  as  one  not  of  contract  but  of  assertion.  Thus  in  several  instances, 
verdicts  have  been  sustained  by  the  Supreme  Court  of  New  York,  where 
there  was  no  evidence  other  than  of  mere  representations  made  by  the  vendor 
at  the  time  of  the  sale,  unsupported  by  proof  that  he  meant  to  make  himself 
liable  for  anything  more  than  their  correctness,  so  far  as  his  knowledge 
extended.  DufFee  v.  Mason,  8  Cowen,  25;  Whitney  v.  Sutton,  10  Wend. 
413;  Cook  v.  Mosely,  13  Wend.  277. 

In  these  decisions  the  effect  of  the  common  law  doctrine,  to  which  the 
courts  of  that  state  adhere  in  theory,  appears  to  have  been  destroyed  in 
practice,  and  they  were  on  that  account  criticised  in  the  opinion  delivered 
by  GiBSOx,  C.  J.,  in  Borrekins  v.  Bevan,  3  Rawle,  45.  In  like  manner,  in 
the  case  of  Morrill  v.  Wallace,  above  cited,  it  was  held,  that  the  point  to 
be  determined  by  the  jury,  was  whether  what  had  been  said  by  the  vendor 
was  an  affirmation  or  assertion  of  the  goodness  of  the  article  sold,  or  merely 
an  expression  of  opinion  with  regard  to  its  quality.  Had  the  distinction 
been  taken  as  between  a  mere  expression  of  opinion,  and  an  implied  under- 
taking for  the  quality  of  the  article,  the  opinion  there  given  would  not  have 
been  open  to  the  objection  of  disregarding  the  principles  which  distinguish 
an  action  upon  a  warranty,  from  one  upon  the  case,  for  deceit.  Tlie  law 
would  seem  to  have  been  more  correctly  laid  down  in  the  case  of  the  Oneida 
Manufacturing  Society  v.  Lawrence,  4  Cowen,  440,  where  it  was  said,  that 
to  constitute  a  warranty,  the  assertion  must  have  been  positive,  and  relied 
on  as  such  by  the  vendee. 

But  even  as  thus  qualified,  the  doctrine  asserted  by  the  Supreme  Court  of 
New  York  in  the  cases  last  cited,  and  followed  in  the  decision  given  in  Mor- 
rill V.  Wallace,  appears  inconsistent  with  the  determinations  of  that  tribunal 
in  other  instances,  in  which  there  was  no  apparent  intention  to  disregard  or 
overrule.  Thus  in  the  case  of  Swett  v.  Colgate,  supra,  184,  the  merchan- 
dize sold  had  not  only  been  advertised  as  barilla,  but  had  been  so  described 
in  the.  bill  of  parcels  delivered  to  the  purchaser.  It  would  seem  that  if 
in  any  case  mere  matter  of  assertion  or  description  is  to  be  regarded  as  a 
warranty,  it  should  have  been  so  in  this,  where  it  was  incorporated  by  the 
vendor  into  the  written  evidence  of  the  contract,  yet  we  have  seen  that  this 


198  smith's  leading  cases. 

effect  was  absolutely,  and  as  a  mere  point  of  law,  denied  to  the  transaction  ; 
while  in  Cook  v.  Mosely,  the  bare  assertion  that  the  mare  sold  by  the 
defendant  was  not  lame,  and  that  he  would  not  be  afraid  to  warrant  her,  was 
held  sufficient  to  render  him  liable  on  an  express  warranty.  Had  the  deci- 
sions in  these  two  cases  been  exactly  reversed,  the  law  if  not  more  cor- 
rectly asserted  in  each  would,  perhaps,  have  been  more  accurately  applied. 
The  same  remark  will  hold  good  with  regard  to  the  cases  of  Seixas  v. 
Woods,  and  Whitney  v.  Sutton. 

The  effect  which  should  be  attributed  to  an  advertisement,  or  other  gene- 
ral representation  of  the  vendor,  as  showing  what  was  the  governing  inten- 
tion of  the  parties,  at  the  time  of  entering  into  the  contract,  and  thus  defin- 
ing the  subject-matter  with  regard  to  which  it  was  made,  was  strongly 
staled  by  Parsons,  C.  J.,  in  the  case  of  Bradford  v.  Manly,  above  cited. 
He  there  said,  "  A  case  similar  to  this  in  principle  came  before  me  two  or 
three  years  ago  at  Nisi  Prius.  An  advertisement  appeared  in  the  papers, 
which  was  published  by  a  very  respectable  mercantile  house,  oflering  for 
sale  good  Caraccas  Cocoa.  The  plaintiff  made  a  purchase  of  a  considerable 
quantity,  and  shipped  it  to  Spain  ;  having  examined  it  at  the  store  before 
he  purchased  ;  but  he  did  not  know  the  difference  between  Caraccas  and 
other  cocoa.  In  the  market  to  which  he  shipped  it,  there  was  a  consider- 
able difference  in  value,  in  favour  of  the  Caraccas.  It  was  proved  that  the 
cocoa  was  of  the  growth  of  some  other  place,  and  that  it  was  not  worth  so  much 
in  that  market.  I  held  that  the  advertisement  was  equal  to  an  exp-ess  war- 
ranty, and  the  jury  gave  damages  accordingly.  The  defendants  had  eminent 
counsel,  and  they  thought  of  saving  the  question  ;  but  afterwards  abandoned 
it,  and  suffered  judgment  to  go  against  them."  Yet  it  is  necessary  to 
point  out  that  great  caution  is  requisite  in  incorporating  into  the  conclusion 
of  a  contract  what  has  antecedently  passed  between  the  parties,  as  it  may 
have  been  waived  or  excluded  by  them,  and  some  other  ground  taken 
before  completing  the  bargain.  This  rule  applies  with  especial  force  where 
the  contract  is  finally  reduced  to  writing,  Kain  v.  Old,  2  B.  &  C.  827,  and 
where  that  has  been  done,  it  would  appear  difficult  to  justify  the  addition  of 
any  extraneous  matter  for  the  purpose  of  qualifying  it  by  introducing  a 
warranty,  although,  perhaps,  the  same  objection  does  not  apply  where  the 
evidence  is  given  as  it  seems  to  have  been  in  the  instance  cited  in  Bradford 
V.  Manly,  with  the  view  of -showing  what  was  the  subject-matter  of  the 
contract,  and  not  what  were  its  tern)s. 

It  will  be  observed,  that  the  opinion  thus  expressed  by  Parsons,  C.  J., 
coincides  with  and  supports  that  of  the  majority  of  the  Court  in  Borrekins 
V.  Bevan,  with  regard  to  the  effect  of  a  declared  intention  on  entering  a 
wine  merchant's  shop  to  purchase  Madeira  and  a  subsequent  sale  by  him  of 
Teneriffe.  In  accordance  with  the  same  general  doctrine  it  was  held  in 
the  subsequent  case  of  Hastings  v.  Lovering  already  cited,  that  the  vendor 
was  liable  where  the  goods  dehvered  did  not  correspond  with  the  descrip- 
tion in  the  bill  of  parcels,  which  was  taken  as  primary  evidence  of  tlie  con- 
tract of  sale.  In  the  recent  case  of  Ilenslow  v,  Robins,  9  Metcalf,  83,  the 
language  of  the  Chief  Justice  in  Bradford  v.  Manly,  and  the  case  cited  by 
him  as  authorizing  the  introduction  into  the  contract  of  a  representation 
made  in  a  previous  advertisement,  were  referred  to  as  having  since  ruled 
the  law  in  Massachusetts;  and  it  was  decided  that  the  plaintiff  was  enti- 


CHANDELOR     V.     LOPUS.  199 

tied  to  recover  both  on  a  count  for  money  had  and  received,  and  on  a  count 
for  brcacli  of  warrantj^  where  it  appeared  that  he  liad,  after  a  full  oppor- 
tunity for  inspection,  purchased  merchandize  which  was  sold  to  him  as 
indigo,  and  described  as  such  in  the  bill  of  parcels,  but  which  proved  after 
delivery  to  be  a  mixture  of  Prussian  blue  and  chromate  of  iron,  and  were 
immediately  returned  to  the  defendant. 

In  this  case,  as  well  as  in  that  of  Bradford  v.  Manly,  the  nature  of  the 
obligation  imposed  on  the  vendor  by  the  contract,  was  designated  as  arising 
on  a  warranty,  and  yet  the  right  of  the  vendee  to  rescind  the  contract  and 
recover  the  whole  of  the  purchase  mone}%  was  fully  asserted  .in  the  course 
of  the  decision,  although  we  have  seen  that  a  breach  of  a  mere  warranty, 
however  flagrant,  does  not  amount  to  a  total  failure  of  performance  of  the 
contract,  nor  authorise  a  return  of  the  goods  and  abrogation  of  the  sale.  It 
is  more  than  probable,  that  in  resorting  to  this  expression,  nqthing  more  was 
meant  by  the  court,  than  to  declare  that  the  agreement  of  the  vendor  bound 
him  to  the  delivery  of  goods  corresponding  in  nature  and  character  with  its 
terms,  and  was  not  a  mere  executed  sale  of  a  specific  chattel.  These  cases, 
therefore,  do  not  throw  much  light  on  the  somewhat  difficult  question, 
whether  the  undertaking  that  the  nature  of  the  thing  sold  shall  corre- 
spond with  the  terms  employed,  is  to  be  regarded  as  a  mere  warranty  or  as 
an  agreement  for  substantial  identity,  entering  into  the  gist  of  the  contract, 
and  entitling  the  vendee  to  return  the  goods  if  it  remain  unperformed  ; 
which  is  one  of  considerable  importance,  since  the  rights  and  remedies  of 
the  parties  will  ditfer  very  much  in  the  different  aspects  under  which  it 
may  be  regarded. 

Where  the  contract  rests  in  description,  and  the  character  of  the  goods  to 
be  delivered  is  ascertained  only  by  its  terms,  it  must  in  all  cases  be  exe- 
cutory, whether  the  words  employed  are  those  of  an  actual  sale,  or  of  a  mere 
undertaking  to  sell,  since  no  property  can  pass  until  some  specific  article 
has  been  designated  by  the  vendor,  as  coming  within  its  provisions.  In  such 
cases  there  can  be  no  doubt  that  if  the  goods  delivered  do  not  correspond 
with  the  terms  of  the  contract,  no  obligation  will  be  imposed  on  the  vendee 
to  receive  them,  and  the  breach  will  go  to  the  whole  of  the  contract.  Oa 
the  other  hand,  where  the  subject-matter  of  the  sale  is  ascertained  by  the 
designation  of  the  parties  as  consisting  of  a  specific  chattel  or  parcel  of  mer- 
chandize, the  contract  is  executed,  and  any  undertaking  of  the  vendor  for 
the  quality  or  nature  of  what  he  has  sold,  will  be  a  mere  independent  stipu- 
lation or  warranty,  the  performance  of  which  is  not  essential  to  a  recover}' 
against  the  vendee,  and  which  will  constitute  a  distinct  and  several  cause  of 
action  against  the  vendor.  But  there  are  intermediate  cases  in  which,  while 
a  certain  reference  has  been  had  to  specific  chattels,  there  is  more  or  less 
evidence  of  an  intention  to  contract  on  the  basis  of  a  previously  ascertained 
designation  of  what  is  to  be  the  subject-matter  of  the  sale.  Thus  even  in 
the  case  in  which  a  specific  parcel  of  merchandize  is  set  forth  in  a  written 
contract  as  that  which  the  vendor  has  agreed  to  sell,  and  the  vendee  to  buy, 
if  the  contract  has  been  concluded  upon  the  exhibition  of  a  sample,  an  agree- 
ment for  the  identity  of  the  merchandize  with  the  sample,  will  be  incorpo- 
rated into  its  terms,  and  unless  performed,  there  will  be  no  performance 
whatever  of  the  contract.  In  like  manner,  where  the  vendor  before  the  sale 
has  held  himself  out  by  advertisement  as  possessed  of  merchandize  answer- 
ing a  particular  description,  a  subsequent  contract  for  its  purchase  may  be 


200  smith's   leading   cases. 

considered  as  based  upon  the  substance  of  the  representation  thus  made,  and 
this  presumption  will  not  necessarily  be  rebutted,  even  where  the  final 
agreement  is  for  the  purchase  of  a  specific  article,  if  it  appear  that  the 
object  of  the  vendee,  as  understood  by  the  parties,  still  remained  unchanged. 
In  such  cases  the  reference  to  the  particular  thing  sold,  will  be  taken  as  a 
mere  assent  by  the  vendee  to  its  designation  by  the  vendor,  as  that  which 
he  intends  to  deliver  in  pursuance  of  the  agreement.  This  assent,  unless 
retracted  for  a  sufficient  reason,  will,  it  is  true,  have  the  effect  of  executing 
the  contract,  and  passing  the  right  of  property  in  what  is  sold,  bul  will  not 
preclude  the  vendee  from  shewing  that  it  was  given  under  an  impression 
which  upon  subsequent  examination  proved  to  be  mistaken  in  point  of  fact. 
But  although  there  is  no  absolute  rule  of  law  which  prohibits  parties  from 
making  contracts,  turning  wholly  on  the  point  of  an  undertaking  for  the  sale 
of  goods  of  a  particular  nature,  and  incapable  of  being  fulfilled  by  the  deli- 
very of  any  thing  else,  even  where  the  bargain  is  completed  with  reference 
to  a  specific  chattel  or  parcel,  which  is  supposed  by  one  or  both  to  be  within 
the  meaning  of  the  contract,  it  would,  notwithstanding,  appear  that  the  pre- 
sumption is  exceedingly  strong  in  every  such  instance,  that  what  is  thus  re- 
ferred to  is  the  subject-matter  of  the  sale,  and  that  the  vendor  is  entitled  to 
sue  at  once  for  goods  bargained  and  sold,  however  much  its  real  nature  and 
character  may  differ  from  that  which  was  supposed  by  the  vendee.  Where 
such  is  the  case,  the  latter,  in  the  absence  of  fraud,  can  only  protect  himself 
by  falling  back  upon  proof  of  a  warranty,  when,  as  we  have  seen,  the  ques- 
tion will  depend  on  whether  the  assertions,  made  by  the  vendee  in  the 
course  of  the  transaction,  were  meant  and  understood  as  expressions  of  mere 
belief  and  opinion,  or  as  positive  undertakings  for  the  actual  truth  of  the  facts 
contained  in  them.  Tlius  it  was  held  in  Welsh  v.  Carter,  1  Wend.  185, 
that  where  the  evidence  proved  the  contract  to  have  been  for  the  purchase  of 
a  specific  article,  examined  and  analyzed  by  the  purchaser  before  the  com- 
pletion of  the  sale,  the  terms  of  description  employed  by  the  parties  in  the 
course  of  the  transaction,  were  entirely  immaterial,  and  that  the  vendor 
might  recover,  although  he  had  called  that  barrilla,  which  subsequently 
proved  to  be  substantially  a  mixture  of  charcoal  and  common  salt. 

Where  the  vendor  offers  to  warrant  at  the  commencement  of  a  treaty  to 
effect  a  sale,  his  offer  even  if  not  repeated,  or  again  referred  to,  will  be  incor- 
porated with  the  conclusion  of  the  bargain,  although  effected  some  days 
afterwards.  Wilmot  v.  Hurd,  11  Wend.  585.  If,  however,  the  contract 
be  finally  consummated  by  a  writing,  in  which  the  previous  parol  warranty 
does  not  appear,  then  all  that  is  excluded  from  the  writing,  will  be  pre- 
sumed to  have  been  excluded  from  the  minds  and  assent  of  the  parties  at 
the  time  when  the  writing  was  made  ;  and  the  ordinary  rule,  that  parol 
evidence  cannot  be  given  to  modify  a  written  contract,  in  the  absence  of 
fraud,  will  exclude  the  vendee  from  averring  the  existence  of  the  warranty, 
even  where  it  was  the  understanding  of  the  parties  that  it  existed.  Van 
Ostrand  v.  Reed,  1  Wend.  424.  432  ;  Mumford  v.  M'Pherson,  1  Johns.  417  ; 
Reed  v.  Wood,  9  Vermont,  288;  Dean  v.  Mason,  4  Conn.  432, 

It  can  hardly  be  necessary  to  state,  that  a  misrepresentation  or  warranty 
made  or  given,  subsequently  to  the  conclusion  of  a  contract  of  sale,  without 
some  new  matter  betvveen  the  parties,  cannot  support  either  an  action  of 
deceit  or  of  warranty  ;  in  the  one  case,  from  the  absence  of  consideration  to 


CHANDELORV.     LOPUS.  201 

the  vendor,  in  the  other,  of  injury  to  the  vendee.  Year-book,  5  Henry  7,  7  ; 
Hogins  V.  Plymplon,  11  Pick.  97.  And  such  was  the  decision  in  Bloss  v. 
Kittridge,  5  Vermont,  28,  where  it  was  held  that  if  the  defect  appear  on  the 
face  of  the  declaration,  it  will  not  be  cured  by  verdict. 

Although  what  has  passed  in  parol,  cannot  be  incorporated  into  a  written 
contract,  yet,  as  already  staled,  fraudulent  parol  representations  accompany- 
ing such  contract,  and  on  the  faith  of  which  it  was  assented  to  by  the  vendee, 
will  be  a  sufficient  ground  for  an  action  of  deceit,  or  for  altogether  avoiding 
the  sale  on  the  score  of  fraud.  Mumford  v.  M'Pherson,  1  Johnson,  418  ; 
Wilson  V.  Marsh,  Ibid.  504.  Cozzins  v.  Whitaker,  3  Stewart  &  Porter,  322. 

Where  the  vendor  in  an  action  for  the  purchase-money,  proved  authority 
from  the  defendant  to 'make  a  contract  with  warranty,  and  then  gave  in 
evidence  a  written  contract  made  by  the  agent  thus  authorised,  but  not  con- 
taining a  W'arranty,  it  was  decided  by  the  Supreme  Court  of  New  York, 
that  he  could  not  recover;  the  case  being  within  the  provisions  of  the 
statute  of  frauds,  demanding  a  contract  in  writing.  Peltier  v.  Collins,  3 
Wend.  59.  The  court,  in  delivering  their  opinion,  held,  that  if  the  war- 
ranty in  parol  did  not  form  part  of  the  contract,  it  was  void,  as  not  pursuing 
the  authority  ;  and  if  it  did,  that  the  whole  contract  was  avoided  by  the 
statute,  since  all  its  material  points  were  in  that  case,  not  expressed  in  writing. 

It  was  determined  in  the  case  of  Nelson  v.  Cowing,  6  Hill,  336,  that 
an  agent,  whether  general  or  special,  with  authority  to  sell,  was  pre- 
sumed, unless  the  contrary  were  made  to  appear,  to  have  authority  to 
warrant;  and  the  previous  case  of  Sanford  v.  Hardy,  23  Wendell,  260,  had 
decided  what  is  more  necessarily  obvious,  that  the  fraudulent  representations 
of  the  agent  will  enter  into  and  vitiate  the  whole  contract  of  sale  as  much 
as  if  made  by  the  principal.  The  sale  there  was  of  land,  but  the  principles 
regulating  the  effect  of  wilful  misstatements  are  the  same  with  regard  to  all 
contracts.  In  the  case  of  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  the  curious 
point  was  pi'esented  as  to  the  effect  of  representations,  which  although  incon- 
sistent with  the  facts,  as  known  to  the  principal,  were  not  shown  to  have 
been  made  with  his  assent,  nor  to  have  been  disbelieved  by  the  agent  who 
made  them.  It  was  hijld  by  the  majority  of  the  court,  Abinger,  C.  B.,  dis- 
senting, that  as  no  positive  falsehood  or  fraud  was  made  out,  the  contract 
was  not  vitiated,  and  the  plaintiff  w^as  entitled  to  recover  in  the  suit  Avhich 
he  had  brought  upon  it.  The  same  question  arose  in  Fuller  v.  Wilson,  3 
Q-.  B.  58,  in  an  action  of  deceit  against  the  principal  on  the  ground  of 
statements  made  by  the  agent,  which  though  untrue  in  point  of  fact,  were 
not  known  to  be  so  by  the  latter.  The  opinion  of  the  court  as  delivered  by 
Lord  Denman,  sustained  the  action  on  the  ground  taken  by  Lord  Abinger 
in  Cornfoot  v.  Fowke,  that  in  such  cases  there  was  some  moral  fraud  in  the 
conduct  of  the  principal  in  concealing  a  material  fact,  and  that  of  the  agent 
in  making  a  statement  which  he  did  not  know  positively  to  be  true.  But 
this  determination  was  reversed  on  error  by  the  Exchequer  Chamber,  Wil- 
son V.  Fuller,  3  Q,.  B.  68.  The  King's  Bench  having  decided  a  similar 
point  the  same  way  in  Evans  v.  Collins,  5  Q,.  B.  804,  although  on  the 
authority  of  a  previous  decision  supposed  to  be  in  point  with  the  special 
circumstances  of  the  case,  were  again  reversed  by  the  Court  of  Exchequer 
Chamber,  Collins  v.  Evans,  Id.  819,  on  the  broad  ground  that  a  statement 
honestly  made,  although  untrue  in  point  of  fact,  was  not  sufficient  to  sus- 
tain the  action.     On  the  whole  it  would  appear  that,  whether  the  defendant 


202  smith's   leading   cases. 

seeks  to  protect  himself,  or  to  charge  another,  on  the  ground  of  misstate- 
ments made  in  the  course  of  a  transaction,  he  must  show  that  they  were 
not  beheved  in  the  form  in  which  they  were  made,  or  in  other  words,  that 
there  was  actual  falsehood  as  opposed  to  mere  mistake,  even  where  result- 
ing from  negligence.  Moens  v.  Heyworth,  10  M.  &  W.  147  ;  Taylor  v. 
Ashton,  11  Id.  401  ;  Ormrod  v.  Huth,  14  Id.  651 ;  Russell  v.  Clark's  execu- 
tors, 7  Cranch,  69  ;  Young  v.  Corel!,  8  Johnson,  25  ;  Tryon  v.  VVhilmarsh, 

1  Metcalf,  1.  Where  the  plaintiff  had  not  sufficient  matter  lo  sustain  an 
action  on  the  contract,  he  cannot  recover  by  turning  it  into  a  proceeding  for 
a  tort,  unless  he  can  show  that  he  was  misled  by  statements  not  only  false  in 
point  of  fact,  but  false  within  the  knowledge  of  the  party  making  them,  and 
made  with  an  intent  to  deceive,  Rawlings  v.  Bell,  1  C.  B.  951, 

But  the  question  of  the  good  faith  of  the  defendant  is  in  all  cases  one  of 
evidence  for  the  jury  under  the  direction  of  the  court ;  and  a  party  may  not 
only  be  made  answerable  as  in  Hazard  v.  Irwin,  for  the  false  assertion  of 
a  knowledge  which  he  does  not  possess,  but  even  where  his  representations, 
although  true  in  themselves,  are  intentionally  so  made  as  to  convey  the 
idea  that  they  contain  the  whole  truth,  while  a  material  fact  is  kept  back 
with  a  view  to  deceive,  and  in  such  a  manner  as  actually  to  create  a  false 
impression.  Allen  v,  Addington,  7  Wendell,  10;  11  id.  75 ;  Kidney  v, 
Stoddart,  7  Metcalf,  252.  It  is,  moreover,  probable,  that  the  vendor  might 
be  made  answerable  for  gross  negligence  in  his  course  of  dealing  with  the 
vendee,  as  much  as  in  any  of  the  other  relations  of  life  ;  but  in  such  a  case, 
it  would  seem,  that  the  declaration  should  be  so  framed,  as  to  show  that  the 
gist  of  the  action  is  for  negligence,  and  not  for  deceit. 

By  a  mere  breach  of  warranty,  the  vendee  in  the  absence  of  fraud,  is 
never  entitled  under  the  general  principles  of  the  law,  to  rescind  the  con- 
tract or  return  the  goods.     Kase  v.  John,  10  Watts,  109  ;  Voorhees  v.  Earl, 

2  Hill,  88  ;  Cary  v.  Gruman,  4  Hill,  626  ;  Thornton  v.  Wynn,  12  Wheaton, 
183 ;   Street  v.  Blay,  2  B.  &  Ad.  456. 

In  Maryland,  however,  by  an  exception  peculiar  to  that  state,  a  breach  of 
warranty  even  without  fraud,  is  held  to  justify  the  return  of  the  goods  war- 
ranted. Hvatt  v.  Boyle,  5  Gill  &  Johnson,  121  ;  Franklin  v.  Long,  2  id. 
487.  The  question  was,  however,  trep.ted  as  still  open  in  Massachusetts, 
in  the  recent  ease  of  Clark  v.  Baker,  5  Metcalf,  452,  but  the  court  there 
avoided  the  point,  and  rested  their  decision  upon  reasons  showing  that  if 
the  right  did  exist,  the  vendee  had  not  done  what  was  necessary  to  enable 
him  to  take  advantage  of  it. 

The  vendee  may  of  course  recover  by  action,  damages  for  any  injury 
which  he  has  sustained  from  a  breach  of  warranty,  even  where  there  has 
been  full  opportunity  for  examination  before  the  purchase,  or  where  the 
goods  have  been  retained,  and  their  price  paid  in  full  after  defect  discovered, 
Adams  v.  Rogers,  9  Watts,  123;  Boorman  v.  Johnston,  12  Wend.  566; 
Cook  v.  Mosely,  13  id.  279;  Kellogg  v.  Denslow,  14  Conn.  411.  And  it 
is  now  generally  admitted  that  without  resorting  lo  a  cross-action  he  may 
wait  to  secure  his  indemnity  until  suit  has  been  brought  against  him  for  the 
purchase  money,  and  then  take  advantage  of  the  breach  of  the  warranty  as 
a  defence,  not  as  a  technical  set-ofF,  but  as  proof  of  failure  of  consideration 
and  in  mitigation  of  damages,  M'Allister  v.  Reab,  4  Wend,  489,  S.  C,  in 
error,  8  Wend.  189  ;  Jadd  v.  Dennison,  10  Wend.  513  ;  Boorman  v.  John- 
son,  12  Wend.  556;  Steigleman  v.  Jeflries,  1  Sergeant  &  Rawle,  478 ; 


CHANDELOR     V.     LOPUS.  203 

Wilmot  V.  Hurd,  11  Wend.  585;  Street  v.  Blay,  2  B.  &  Ad.  456.  And 
in  Harrington  v.  Stratton,  23  Pick.  510,  such  was  held  as  the  law  in  Mas- 
sachusetts with  reference  to  breaches  of  warranty,  although  the  point 
actually  presented  turned  on  a  question  of  fraud. 

But  although  in  the  absence  of  fraud  a  breach  of  warranty  will  not  give  the 
vendee  a  right  to  avoid  the  contract  of  sale,  yet,  as  we  have  seen,  in  the  ab- 
sence both  of  fraud  and  warranty,  he  may  treat  the  contract  as  not  binding 
him  to  the  payment  of  the  purchase  money  where  the  articles  delivered  are 
not  the  substance  to  which  it  related.  Under  these  circumstances,  whether 
the  purchaser  has  returned  or  retained  the  goods,  he  may  shew  that  they  are 
not  such  as  he  agreed  to  buy,  either  as  a  cause  of  action  against  the  vendor 
for  failing  to  fulfil  his  contract,  or  as  a  defence  to  an  action  against  himself 
for  the  purchase  money.  Borrekins  v.  Bevan,  3  Rawle,  23;  Hastings  v. 
Lovering,  2  Pick.  215  ;  Osgood  v.  Lewis,  2  Harris  &  Gill,  9,  495;  Kel- 
logg v.  Denslow,  14  Con.  411;  Wright  v.  Barnes,  id.  519;  Howard  v. 
Hoey,  23  Wend.  350. 

Where  there  has  been  fraud  on  the  part  of  the  vendor,  in.  the  form  of 
acts  or  representations,  performed  or  made  with  the  intent  to  deceive  the 
vendee,  the  latter  is  entitled  to  avoid  the  sale  ab  initio,  and  recover  or  retain 
the  whole  value  of  the  goods  from  the  vendor.  Voorhees  v.  Earl,  2  Hill, 
288;  Kase  v.  John,  10  Watts,  109;  Burton  v.  Stewart,  3  Wend.  238; 
Hazard  v.  Irwin,  18  Pick.  99.     Thayer  v.  Turner,  8  Metcalf,  550. 

It  would  seem  in  such  cases,  that  the  contract  of  sale  is  voidable  but  not 
void  ;  since,  as  the  intent  of  the  law,  is  the  protection  of  the  injured  party, 
that  end  is  best  answered,  by  giving  him  the  election  to  affirm  the  contract 
and  recover  damages  for  the  deceit,  or  to  avoid  it,  and  indemnify  himself  to 
the  full  extent  of  the  value  of  the  goods.  Such  avoidance  of  the  contract, 
may  be  pleaded,  or  given  in  evidence,  by  the  vendee  or  his  surety,  as  a 
defence  even  to  an  action  on  a  bond  given  by  them  for  the  purchase-money, 
in  those  states  where  fraud  not  immediately  afiectingthe  execution  of  a  speci- 
alty, is  admitted  as  a  valid  defence  at  law.     Hazard  v.  Irwin,  18  Pick.  103. 

Although  there  can  be  no  doubt  that  the  vendee  will  be  bound  by  his 
election  to  avoid  or  confirm  the  contract,  when  once  declared,  it  does  not 
seem  in  all  cases  definitely  settled,  by  what  acts  this  declaration  can  be 
considered  as  made  ;  but  the  better  opinion  is,  that  if  the  vendee  receive 
and  retain  the  goods  without  objection,  he  will  thereby  affirm  the  contract, 
although  still  entitled,  in  any  suit  brought  for  the  purchase  money,  after  a  pro- 
per plea  or  notice,  to  give  the  fraud  in  evidence,  as  proof  of  failure  of  conside- 
ration. Beecher  v.  Vrooman,  13  Johnston,  302  ;  Burton  v.  Stewart,  3  Wen- 
dell, 238  ;  Com,  v.  Henderson,  5  Mass.  323  ;  Hazard  v.  Irwin,  18  Pick.  102  ; 
Borrekins  v.  Bevan,  3  Rawle,  44  ;  Voorhees  v.  Earle,  2  Hill,  288;  Harring- 
ton v.  Siratton,  22  Pick.  510.  The  same  principle  applies  when  the  vendor 
has  failed  to  deliver  that  which  he  agreed  to  sell,  and  the  vendee  to  receive. 
Although  the  latter  is  of  course  not  bound  under  such  circumstances,  either 
to  accept  or  pay  for  articles  not  answering  the  description  of  the  contract, 
yet,  if  he  allow  them  to  come  into  his  hands,  and  remain  there,  without  offer- 
ing to  return  them  to  the  vendor,  he  will  be  held  to  have  accepted  what 
has  been  delivered,  as  amounting  at  least,  to  a  partial  performance  of  the 
contract,  and  will  be  debarred  from  treating  it  as  at  an  end,  and  recovering 
back  from  the  vendor  the  amount  of  the  purchase-money  which  he  may 
have  paid  to  him.     Clark  v.  Baker,  5  Metcalf,  447. 


204  smith's    LEADING    CASES. 

It  has,  moreover,  been  repeated]}^  held,  both  in  cases  of  fraud,  and  of  a 
failure  of  performance,  that  an  entire  contract  of  sale,  cannot  be  apportioned 
by  the  vendee,  even  when  the  defect  extends  only  to  some  of  the  goods  ; 
and  that,  if  affirmed  as  to  part,  it  will,  notwithstanding  an  offer  to  return  the 
rest,  be  binding  as  to  the  whole  ;  Voorhees  v.  Earl,  2  Hill,  288  ;  Kimball 
V.  Cunningham,  4  Mass.  504.  And  this  rule  holds  good  even  where  the 
sale  has  been  made  of  a  certain  number  of  barrels,  and  at  a  stipulated  price 
for  each  ;  Voorhees  v.  Earle.  Thus  in  Clark  v.  Baker,  the  plaintiff  had 
purchased  from  the  defendant,  a  large  quantity  of  white  and  yellow  corn, 
at  that  time  on  board  a  vessel  at  the  wharf,  and  paid  for  it  at  a  certain  rate 
per  bushel,  which  differed  with  regard  to  the  two  species  of  corn.  Before 
the  actual  delivery  was  completed  it  was  discovered,  that  the  quality  of  the 
corn  did  not  correspond  with  the  terms  of  the  contract,  upon  which  the 
defendant  refused  to  receive  any  more,  but  without  offering  to  return  what 
had  been  delivered,  and  brought  his  action  to  recover  back  the  purchase- 
money  paid  for  the  residue.  But  it  was  held  by  the  court  that  the  mere 
circumstance,  that  the  value  of  the  grain  was  estimated  by  the  bushel,  did 
not  entitle  him  to  accept  the  performance  in  part,  and  reject  the  remainder  ; 
and  that  as  the  property  in  tlie  whole  of  the  corn,  had  passed  to  him  under 
the  contract,  the  right  to  refuse  the  whole,  was  determined  by  his  omission 
to  return  that  portion  which  came  to  his  hands. 

But  the  question  in  such  cases,  as  in  all  otliers  of  the  construction  of  con- 
tracts, is  one  of  intention  ;  and  the  general  rule  merely  proceeds  upon  a 
presumption  which  may  be  rebutted  by  particular  circumstances.  Thus, 
where  articles  differing  in  nature,  were  sold  at  auction  in  different  parcels, 
it  was  held  that  the  contract  of  sale  was  not  entire,  and  that  the  purchaser 
might  accept  some  of  the  parcels,  without  waiving  his  right  to  reject  the 
rest  as  not  agreeing  with  the  sample  exhibited,  at  the  time  of  the  purchase. 
Barclay  v.  Tracy,  5  Walts  &  Sergeant,  45. 

The  right  of  the  vendee  to  give  in  evidence  as  a  defence  to  an  action  for 
the  purchase  money,  either  the  breach  of  a  mere  warranty,  or  a  failure  to 
comply  with  the  terms  of  an  executory  contract,  may  now  be  regarded  as 
established  in  England,  and  in  most  of  the  courts  of  this  country.  In  both 
cases,  however,  it  is  subject  to  some  restrictions;  and  there  is  a  difficulty  in 
the  former  in  reconciling  it  with  the  established  principles  of  pleading,  which 
does  not  exist  in  the  latter.  The  question  was  examined  and  the  distinc- 
tions between  the  two  species  of  contracts  ably  considered  by  the  Court  of 
Exchequer  in  the  recent  case  of  Mondel  v.  Steele,  8  M.  &  W.  858.  The 
plaintiff  there  brought  suit  on  a  contract  for  building  a  ship  according  to  a 
certain  specification,  and  averred  a  breach  by  a  failure  to  comply  with  its 
terms,  but  confined  his  demand  to  the  damages  arising  on  a  voyage  subse- 
sequent  to  the  delivery,  from  the  delay  and  expenditures  for  repairs,  ren- 
dered necessary  by  the  unfitness  of  the  vessel  to  encounter  the  perils  of  the 
navigation.  The  defendant  pleaded,  that  before  action  brought  he  had  sued 
the  plaintiff  in  indebitatus  assumpsit  for  the  price  of  the  ship,  and  that  the 
failure  to  comply  with  the  contract  having  been  given  in  evidence  by  the 
latter,  the  jury,  under  the  charge  of  the  Court,  had  reduced  the  recovery 
against  him  by  the  amount  of  compensation  and  damages  to  which  he  was 
entitled  for  such  failure.  Under  these  circumstances  it  was  held,  after  ar^^u- 
ment  upon  a  demurrer  to  this  plea,  that  in  the  case  of  an  executory  contract 


CHANDELOR     V.     LOTUS.  205 

for  the  delivery  of  goods  answering  a  parlicular  description,  as  in  the  instance 
of  a  sale  by  sample,  or  of  an  agreement  to  manufacture  a  chattel  in  a  specified 
manner,  such  as  that  then  under  consideration,  there  can  be  no  recovery  on 
the  contract  itself,  if  the  articles  delivered  do  not  amount  to  a  performance 
of  that  which  has  formed  the  executory  consideration  for  the  undertaking 
of  the  vendee  :  and  this  whether  they  are  returned  or  accepted  by  him. 
But  in  the  latter  case  an  action  of  general  assumpsit  may  be  brought  on  the 
new  promise  implied  by  law  from  the  acceptance,  in  which  the  original  con- 
tract will  be  evidence  as  affording  the  means  of  determining  the  amount  of 
compensation  to  which  the  plaintiff  is  entitled,  by  a  standard  of  value  fixed 
by  the  admissions  of  the  parties.  It  followed,  in  the  opinion  of  the  Court, 
from  these  principles,  that  the  legal  effect  of  the  evidence  introduced  in  the 
former  action  by  the  present  plaintifii  was  to  restrict  the  right  of  recovery 
of  the  builder  of  the  vessel  to  what  she  was  worth  at  the  time  of  delivery, 
as  ascertained  by  the  comparison  of  her  value  then,  with  what  it  would  have 
been  had  the  contract  been  fulfilled,  but  not  to  oblige  him  to  submit  to 
any  deduction  from  the  verdict  by  way  of  compensation  for  the  special 
injury  subsequently  produced  by  her  unfitness  to  resist  the  accidents  of  the 
voyage,  and  the  consequent  necessity  for  making  expensive  repairs.  As 
the  present  suit  was  brought  on  this  latter  cause  of  action,  the  plea  was  con- 
sequently held  not  to  amount  to  a  valid  defence.  The  effect  of  the  course 
of  reasoning  thus  adopted,  is  to  restrain  in  all  cases  the  right  of  resorting  to 
the  defective  quality  of  the  goods  delivered  under  a  contract  of  sale,  as  a 
defence  to  an  action  for  the  purchase  money,  to  the  resulting  diminution  of 
marketable  value,  to  the  exclusion  of  any  consequential  injury  subsequently 
suffered  b}^  the  vendee. 

It  must,  however,  be  observed,  with  regard  to  the  doctrine  thus  advanced 
in  this  case,  that  it  ought  to  be  confined  in  practice  to  damages  merely  conse- 
quential; and  it  may  be  doubted  whether  such  was  the  character  of  those 
which  constituted  the  cause  of  action  in  Monde]  v.  Steele.  The  inability  of  a 
vessel  built  in  an  inferior  manner  to  go  to  sea  without  requiring  repairs,  is 
that  which  makes  her  worth  less  than  if  more  care  had  been  employed  on  her 
construction  ;  and  the  probable  contingencies  of  loss  thence  arising  are  pre- 
cisely what  ought  to  be  estimated  by  the  jury,  in  arriving  at  the  amount  of 
their  verdict  in  an  action  brought  by  the  builder,  where  the  vessel  has  been 
accepted,  and  the  defence  subsequently  set  up  that  he  has  not  complied  with 
his  contract.  Where  this  has  been  done  it  is  difficult  to  see  how  the  natural 
results  of  the  mode  of  construction  adopted,  which  are  in  fact  the  reasons 
why  the  recovery  in  the  first  instance  should  be  diminished,  can  afterwards 
be  brought  forward  as  new  and  substantial  causes  of  action.  These,  it 
would  seem,  can  only  exist  when  the  subsequent  injury  is  one  which  is  not 
necessarily  connected  with  the  breach  of  the  contract  or  warrant}'-,  and  yet 
is  of  such  a  nature  as  to  be  a  consequence  recognised  by  the  law  when  it 
has  once  actually  happened.  Thus  if  the  vendor  In  the  case  of  Brown  v. 
Edgington,  above  cited,  had  been  previously  sued  in  assumpsit  for  the  price 
of  the  rope,  and  had  set  up  the  breach  of  warranty  as  a  defence,  it  is  obvi- 
ous that  the  injury  which  he  sustained  by  the  loss  of  the  cask  of  wine  could 
not  have  been  taken  into  consideration  by  the  jury,  and  that  he  would 
therefore  have  been  entitled  to  make  that  the  subject  of  a  subsequent 
action. 


206  smith's   leading   cases. 

The  principles  asserted  in  Mondel  v.  Steele,  as  supporting  the  right  of  a 
purchaser  under  an  executory  contract  of  sale  which  has  not  been  fulfilled, 
to  set  up  the  consequent  deficiency  in  value  as  a  defence  to  an  action  by  the 
vendor,  apply  fully  in  the  case  of  a  contract  which,  although  performed, 
has  been  rendered  inoperative  by  the  fraud  of  the  party  who  seeks  to 
enforce  it.  It  was,  however,  admitted  by  the  court,  that  these  principles 
are  of  more  difficult  application  in  the  case  of  a  mere  breach  of  warranty. 
That  is  regarded  by  the  law  as  an  executory  undertaking,  of  which  the 
performance  is  not  a  condition  precedent,  and  need  not  be  proved  or  averred 
even  in  a  declaration  in  special  assumpsit  upon  the  contract  itself.  Nor 
does  it  enter  into  the  essence  of  the  undertaking,  or  attach  itself  to  the 
nature  of  that  of  which  the  delivery  is  stipulated,  and  thus  the  breach  does 
not  give  the  purchaser  a  right  to  treat  the  contract  as  unperformed  and 
return  the  goods.  It  follows,  that  whether  he  is  sued  in  general  or  special 
assumpsit,  his  liability  accrues  under  the  original  contract :  in  the  latter 
case,  on  the  ground  that  the  undertaking  of  the  plaintiff  has  been  performed 
so  far  as  is  necessary  to  give  a  right  of  suit,  in  the  former,  on  the  well  recog- 
nized principle,  that  indebitatus  assumpsit  may  be  maintained  on  a  specific 
contract  which  has  been  so  far  fulfilled,  that,  if  specially  declared  on,  it 
would  shew  a  right  to  the  receipt  of  money.  The  breach  of  the  warranty 
ought,  therefore,  under  such  circumstances,  to  come  under  the  rule  which 
governs  the  construction  of  other  merely  independent  stipulations  in  agree- 
ments, and  not  be  admissible  in  evidence  on  strict  common  law  reasoning, 
for  the  purpose  either  of  diminishing  or  defeating  a  recovery. 

Such  was  in  fact  the  decision  of  the  Supreme  Court  of  the  United  States 
in  the  case  of -Thornton  v.  Wynn,  12  Wheaton,  183.  193.  It  was  there 
held,  that  the  action  of  the  vendor  must,  in  all  cases,  be  regarded  as  brought 
upon  the  original  contract,  except  where  the  vendee  having  possessed  and 
exercised  the  power  of  rendering  it  void,  was  liable  upon  a  mere  quantum 
meruit ;  and  that  it  was  only  in  the  latter  case  in  which  the  value  of  the 
goods  necessarily  came  in  question,  that  a  breach  of  warranty  could  be  given 
in  evidence  by  him  as  a  defence,  while  in  every  other  he  was  liable  for  the 
whole  amount  originally  stipulated,  and  must  be  left  to  his  cross  action 
for  the  purpose  of  obtaining  indemnity. 

But  the  course  of  decision,  in  this  country,  has  been  such  as  wholly  to 
abrogate  the  distinction  relied  on  in  Thornton  v.  Wynn,  as  showing,  that 
the  right  to  set  up  the  defective  quality  of  the  goods  as  a  defence  can  only 
exist  where  the  suit  is  on  a  new  promise,  implied  from  the  acceptance  of 
goods  by  the  vendee,  which  he  was  not  bound  to  have  received  under  the 
original  contract,  whether  in  consequence  of  its  being  void  or  merely  unful- 
filled by  the  vendor.  It  is  now  well  settled,  by  the  decisions  already  cited, 
that  in  all  cases  where  the  vendee  acquiesces  in  the  action  of  the  vendor  by 
receiving  and  using  the  goods,  either  wholly  or  in  part,  he  will  be  held  to 
have  affirmed  the  contract  of  sale,  or  to  have  v/aived  a  further  i^erformance, 
and  must,  consequently,  be  liable  under  its  terms,  and  not  upon  a  mere  quan- 
tum meruit.  The  operation  of  this  doctrine  has  been  already  fully  exemplified 
both  in  cases  of  fraud  and  in  those  where  the  con  tract  has  not  been  fulfilled. 
It  is,  therefore,  obvious,  that  where  there  has  been  an  acceptance  of  the 
goods,  the  defence  of  the  vendee  must  rest,  under  this  doctrine,  upon  the 
same  footing,  whether  it  consists  in  evidence  of  a  failure  of  performance,  of 


CHANDELOR     V.     LOPUS.  207 

fraudulent  representations,  or  of  a  mere  breach  of  warranty  : — and  that  in 
each  of  these  cases  he  is  still  bound  by  the  original  contract,  and  his  right 
to  set  up  the  injury  arising  from  the  defective  quality  of  the  goods  for  the 
purpose  of  diminishing  the  amount  recovered,  must  depend,  in  all  of  them, 
upon  the  equitable  principle  of  apportioning  the  rights  given  by  the  terms 
of  an  express  contract,  by  the  failure  of  the  consideration. 

This  course  of  reasoning  brings  the  right  of  defence,  in  such  cases,  to 
the  point  at  which  it  was  fixed  in  Mondel  v.  Steele,  and  limits  it  to  the 
failure  of  consideration  resulting  from  the  fraud  or  breach  of  warranty  ;  but 
on  either  ground,  there  is  no  reason  to  doubt  the  soundness  of  the  distinction 
between  such  a  defence,  and  one  extending  to  remote  and  consequential 
damages.  The  latter  can,  in  fact,  only  be  good  by  way  of  recupement,  or 
where,  as  in  Pennsylvania,  a  set-ofl"  of  unliquidated  damages  is  admissible 
under  some  special  enactment.  It  is  well  settled,  that  a  claim  for  a  breach  of 
warranty  cannot  be  pleaded,  or  given  in  evidence  as  a  set-ofi' to  a  suit  upon  a 
cause  of  action  different  from  that  to  which  the  warranty  was  attached  ;  and 
for  the  same  reason,  to  a  suit  upon  a  warranty  no  set-off  is  admissible.  Wil- 
mot  V.  Hurd,  11  Wendell,  585.  Of  course,  when  considered  as  a  mere 
technical  set-ofT,  the  same  rule  must  hold  good  where  the  suit  is  brought  on 
the  contract  in  which  the  warranty  was  given. 

The  right  of  the  vendee  to  rely  upon  the  defective  quality  of  the 
goods  as  a  defence  to  an  action  by  the  vendor,  will  not  be  defeated  under 
the  law  generally  followed  in  this  country,  by  the  circumstance,  that  the 
suit  is  brought  on  a  note  given  for  the  purchase-money.  This  was  deter- 
mined by  the  Supreme  Court  of  Massachusetts  in  the  case  of  Harrington 
V.  Stratton  already  cited,  in  which,  although  the  defence  rested  on  the  fraud 
of  the  vendor,  yet  as  the  sale  had  been  affirmed  by  the  vendee,  the  ques- 
tion was  admitted  to  be,  and  was  decided  on  the  same  fooling  as  if  it  had 
been  merely  a  breach  of  warranty  ;  and  the  point  was  again  decided  in  the 
recent  case  of  Goodwin  v.  Morse,  9  Metcalf,  278.  The  law  has  been  repeat- 
edly held  the  same  way  in  New  York  ;  Spalding  v.  Vandercook,  2  Wend. 
431  ;   M'Allisterv.  Reab,  4  Wend.  489  ;  Judd  v.^Dennison,  10  Wend.  512. 

But  in  Pulsifer  v.  Hotchkiss,  12  Connecticut,  234,  it  was  decided,  that 
false  representation  made  as  the  inducement  to  a  purchase  of  a  patent-right, 
could  not  be  received  in  evidence  as  a  defence  to  an  action  on  a  note  given 
for  the  price,  unless  it  were  shown,  either  that  the  patent-right  was  abso- 
lutely of  no  value,  or  that  it  had  been  returned  by  the  purchaser,  and  the 
contract  of  sale  avoided  by  him.  The  objection  was  rested  on  the  ground 
which  has  prevailed  more  generally  in  the  English  courts  than  in  our  own, 
that  a  partial  failure  of  consideration  is  not  a  defence  to  an  action  upon  a 
promissory  note  or  bill  of  exchange,  even  as  between  the  original  parties. 
Of  course,  where  the  original  contract  was  affected  with  fraud,  and  has  been 
rendered  void  in  consequence  by  the  vendee,  the  consideration  of  a  note 
given  by  him  for  the  purchase-money  is  entirely  gone,  and  no  action  can 
be  maintained  upon  it.  Sill  v.  Rood,  15  Johnson,  230.  At  common  law, 
if  on  a  sale  with  warranty,  a  bond  were  given  for  the  purchase-money,  a 
breach  of  the  warranty  could  not  be  given  in  evidence  as  a  defence  to  a  suit 
on  the  bond.     Vrooman  v.  Phelps,  2  Johnson,  178. 

And  the  same  objection  existed  to  evidence  given  for  the  purpose  of  affect- 
ing the  consideration  of  an  instrument  under  seal  in  any  other  way,  and  even 
on  the  ground  of  fraud,  since  as  none  was  required  by  law  for  its  support,  the 


SMITH    S     LEADING     CASES. 

,e  raised  was  entirely  immaterial.  Stevens  v.  Jiidson,  4  Wendell,  471. 
^  and  or  failure  of  consideration  were,  of  course,  always  admitted  to  be 
good  defences  in  equity,  and  in  the  case  of  Hazard  v.  Irwin,  18  Pick.  87, 
it  was  held  by  the  Supreme  Courc  of  Massachusetts,  that  when  proved  or 
admitted,  fraud  should  have  an  equal  eflect  at  law.  It  was  consequently 
held,  that  the  fraudulent  representations  of  the  vendor  with  regard  to  the 
character  and  value  of  the  chattels  sold,  were  sufficient  to  defeat  an  action 
on  a  bond  given  for  the  purchase-money.  The  strict  rule  on  this  point 
held  in  New  York,  has  since  been  abrogated  by  the  Revised  Statutes  ; 
Case  V.  Broughton,  11  Wendell,  108  ;  and  either  fraud  or  failure  of  consi- 
deration has  long  been  admissible  in  such  cases,  in  Pennsylvania,  under 
the  plea  of  payment  with  leave  given  by  the  act  of  Assembly,  and  the  equit- 
able principles  which  have  always  formed  part  of  the  jurisprudence  of 
that  State. 

It  was  decided  by  the  Supreme  Court  of  New  York,  in  Carey  v.  C4ru- 
man,  4  Hill,  626,  that  in  all  cases  where  the  vendor  becomes  hable  to  the 
vendee,  for  the  defective  quality  of  the  goods  which  he  has  sold,  whether 
his  liability  arises  through  fraud  or  breach  of  contract,  the  true  measure  of 
damages,  is  the  actual  value  of  goods  corresponding  to  his  representations 
or  agreement ;  and  it  was  held,  that  the  amount  of  the  purchase-money, 
although  strong,  was  not  conclusive  evidence  of  such  value.  This  rule  for 
the  estimation  of  damages,  was  also  recognized  in  the  Pennsylvania  case  of 
Borrekins  v.  Be  van,  3  Rawle,  44. 

It  need  hardly  be  said,  that  a  declaration  on  a  warranty,  as  well  as  on 
every  other  contract,  must  strictly  pursue  its  legal  intent.  Thus  in  the  case 
of  Hills  V.  Bannister,  8  Cowen,  31,  where  the  defendant  had  warranted 
that  a  bell  cast  by  him  would  not  crack  within  a  year,  and  if  it  did,  that 
he  would  recast  it,  the  court  decided  that  he  could  not  be  made  liable, 
without  an  averment  of  notice  of  the  defect,  and  request  to  recast.  At  the  same 
time,  it  was  held,  that  the  defect  might,  on  notice  of  such  intent,  be  given 
in  evidence  as  failure  of  consideration,  under  the  general  issue,  in  mitiga- 
tion of  damages. 

In  like  manner,  if  the  action  be  in  tort,  the  declaration  must  set  forth 
the  averments,  substantially  necessary  to  sustain  the  action  ;  and  if  it  does 
not,  the  plaintiff  cannot  be  allowed  to  establish  them  at  trial  by  proof.  The 
scienter  must  be  averred  ;  and  if  not  averred,  cannot  be  proved.  Executors 
of  Evertson  v.  Miles,  6  Johns.  138;  Stone  v.  Denny,  4  Metcaif,  154; 
Conner  v.  Henderson,  1-5  Mass.  320  ;  Reed  V.  Ward,  9  Vermont,  288. 

It  would,  however,  appear,  that  as  an  averment  that  the  representations 
were  made  fraudulently  and  with  intent  to  deceive,  as  it  would  be  sufficient 
in  a  plea  in  bar,  so  it  should  be  held  good  in  a  declaration.  And  there  can 
be  no  doubt  that  in  either  case  the  plaintiff  must  follow  up  these  averments 
with  others  sufficient  to  connect  the  fraud  of  the  defendants,  with  the  injury 
suffered  by  himself.  Allen  v.  Addington,  7  Wend.  1  ;  11  Id.  399.  But 
it  is  necessary  to  except  from  the  scope  of  these  remarks,  the  hybrid  action 
between  tort  and  contract,  founded  on  a  niere  breach  of  warranty,  unsupport- 
ed by  proof  of  any  wilful  misrepresentation,  on  the  part  of  the  defendant,  of 
which  the  leading  precedent,  in  modern  times,  is  to  be  found  in  the  case  of 
Williamson  v.  Allison,  supra,  p.  186.  It  may,  moreover,  be  doubted, 
whether  this  mode  of  declaring  would  now  be  supported  by  the  courts  of 


COGGS     V.     BARNARD,  209 

this  country,  as  it  certainly  does  not  appear  to  have  as  yet  been  sanctioned 
in  any  instance  by  their  approbation.  But  we  may  beHeve  that  evidence  of 
gross  carelessness  in  the  representations  held  out  to  the  vendee,  such  as  that 
which  undoubtedly  existed  in  the  case  of  Brown  v.  Edgington,  supra,  187, 
would  support  a  declaration  in  case,  averring  the  negligence  and  consequent 
injury,  as  the  cause  of  action. 


*COGGS  V.    BARNARD.  [*82] 


TRINITY.— 2  ANNiE.(«) 

[reported,  lord  RAYMOND,  909. ]t 

If  a  man  undertakes  to  carry  goods'J))  safely  and  securely,  he  is  responsible  for  any  damage 
they  may  sustain  in  the  carriag-e  through  his  neglect,  though  he  was  not  a  common 
carrier,  and  was  to  have  nothing  for  the  carriage. 

In  an  action  upon  the  case,  the  plaintiff  declared,  quod  cum  Barnard  the 
defendant,  the  10th  of  November,  13  Will.  c.  &c.,  assurapsisset,  salvo  et 
secure  elevare,  Anglice,  to  take  up,  several  hogsheads  of  brandy  then  in  a 
certain  cellar  in  D.  et  salvo  et  secure  deponere,  Anglice  to  lay  them  down 
again  in  a  certain  other  cellar  in  Water-lane  :  the  said  defendant  and  his 
servants  and  agents,  tam  negligenter  et  improvide,  put  them  down  again 
into  the  said  other  cellar,  quod  per  defectum  curioB  ipsius  the  defendant,  his 
servants  and  agents,  one  of  the  casks  was  staved,  and  a  great  quantity  of 
brandy,  viz.,  so  many  gallons  of  Brandy,  was  spilt.  After  not  guilty  pleaded, 
and  a  verdict  for  the  plainiifT,  there  was  a  motion  in  arrest  of  judgment,  for 
that  it  was  not  alleged  in  the  declaration  that  the  defendant  was  a  common 
porter,  nor  averred  that  he  had  any  thing  for  his  pains.  And  the  case  being- 
thought  to  be  a  case  of  great  consequence,  it  was  this  day  argued  seriatim 
by  the  whole  court. 

Gould,  J.  I  think  this  a  good  declaration.  The  objection  that  has  been 
made  is,  because  there  is  not  any  consideration  laid.  But  I  think  it  is  good 
either  way ;  and  that  any  man  that  undertakes  to  carry  goods,  is  liable  to 
an  action,  be  he  a  common  carrier,  or  whatever  he  is,  if  through  his  neglect 
they  are  lost,  or  come  to  any  damage  ;  and  if  a  preemium  be  laid  to  be 
given,  then  it  is  without  question  so.  The  reason  of  the  action  is,  ^_„  , 
the  particular  *trust  reposed  in  the  defendant,  to  which  he  has  L  i 
concurred  by  his  assumption,  and  in  the  executing  which  he  has  miscarried 
by  his  neglect.  But  if  a  man  undertakes  to  build  a  house,  without  any 
thing  to  be  had  for  his  pains,  an  action  will  not  lie  for  non-performance, 
because  it  is  nudum  pactum.     So  is  the  3  Hen.  G,  36.     So  if  goods  are 

{n)  S.  C.  Com.  133.  Salk.  26.  3  Salk.  11.  Holt,  13.  Entry,  Salk.  735.  Raym.  vol. 
3,  p.  240. 

t  [There  is  a  report  of  this  case,  tot.  verb.,  in  the  Hargrave  MSS.,  No.  66,  and  182, 
therein  said  "  to  be  transcribed  from  the  MS.  Reports  of  Herbert  Jaccb,  Esq.,  of  the  Inner 
Temple,  written  with  his  own  hand."]  ija)  Vide  Jones  on  Bailments,  60. 

Vol.  I.— 14 


210  smith's    LEADING     CASES. 

deposited  with  a  friend,  and  are  stolen  from  him,  no  action  will  lie.  29 
Ass.  28.  But  there  will  be  a  difference  in  that  case  upon  the  evidence, 
how  the  matter  appears :  if  they  were  stolen  by  reason  of  a  gross  neglect 
in  the  bailee,  the  trust  will  not  save  him  from  an  action  ;  otherwise  if  there 
be  no  gross  neglect.  So  is  Doct.  et  Siud.  129,  upon  that  difference.  The 
same  difference  is,  where  he  comes  to  goods  by  finding.  Doct.  et  Stud,  ubi 
supra.  Ow.  141.  But  if  a  man  takes  upon  him  expressly  to  do  such  a 
fact  safely  and  securely,  if  the  thing  comes  to  any  damage  by  his  miscar- 
riage, an  action  will  lie  against  him.  If  it  be  only  a  general  bailment,  the 
bailee  will  not  be  chargeable,  without  a  gross  neglect.  So  is  Keilw.  160. 
2  Hen.  7,  11.  22  Ass.  41.  1  R.  10.  Bro.  Action  sur  le  case,  78.  South- 
cote's  case  is  a  hard  case  indeed,  to  oblige  all  men  that  take  goods  to  keep, 
to  a  special  acceptance,  that  they  will  keep  them  as  safe  as  they  would  do 
their  own,  Avhich  is  a  thing  no  man  living  that  is  not  a  lawyer  could  think 
of;  and  indeed  it  appears  by  the  report  of  that  case  in  Cro.  Eliz.  815,  that 
it  was  adjudged  by  two  judges  only,  viz.  Gawdy  and  Clench.  But  in  1 
Vent.  121,  there  is  a  breach  assigned  upon  a  bond  conditioned  to  give  a 
true  account,  that  the  defendant  had  not  accounted  for  30/. ;  the  defendant 
showed  that  he  locked  the  money  up  in  his  master's  warehouse,  and  it  was 
stolen  from  thence,  and  that  was  held  to  be  a  good  account.  But  when  a 
man  undertakes  specially  to  do  such  a  thing,  it  is  not  hard  to  charge  him 
for  his  neglect,  because  he  has  the  goods  committed  to  his  custody  upon 
those  terms. 

Powys,  J.,  agreed  upon  the  neglect. 

Powell,  J.  The  doubt  is,  because  it  is  not  mentioned  in  the  declaration 
that  the  defendant  had  any  thing  for  his  pains,  nor  that  he  was  a  common 
porter,  which  of  itself  imports  a  hire,  and  that  he  is  to  be  paid  for  his  pains. 
So  that  the  question  is,  whether  an  action  will  lie  against  a  man  for  doing 
^  -,  the  office  of  a  friend,  when  there  is  not  any  particular  *neglect 
L  -'  shown?  And  I  hold,  an  action  will  lie  as  this  case  is.  And  in 
order  to  make  it  out,  I  shall  first  show  that  there  are  great  authorities  for 
xne,  and  none  against  me  :  and  then  second  I  j%  I  shall  show  the  reason  and 
gist  of  this  action  :  and  then,  thirdly,  I  shall  consider  Southcole's  case. 

1.  Those  authorities  in  the  Register,  110,  a.  b.,  of  the  pipe  of  wine,  and 
the  cure  of  the  horse,  are  in  point ;  and  there  can  be  no  answer  given  them, 
but  that  they  are  writs  which  are  framed  short.  But  a  writ  upon  the  case 
must  mention  every  thing  that  is  material  in  the  case  ;  and  nothing  is  to 
be  added  to  it  on  the  count,  but  the  time  and  such  other  circumstances. 
But  even  that  objection  is  answered  by  Rast.  Entr.  13,  c.  where  there  is  a 
declaration  so  general.  The  year-books  are  full  in  this  point.  43  Edw.  3, 
83,  a.,  there  is  no  particular  act  showed  ;  there  indeed  the  weight  is  laid 
more  upon  the  neglect  than  the  contract.  But  in  48  Edw.  3,  6,  and  19 
Hen.  6,  49,  there  the  action  is  held  to  lie  upon  the  undertaking,  and  that 
without  that  it  would  not  lie  ;  and  therefore  the  undertaking  is  held  to  be 
the  matter  traversable,  and  a  writ  is  quashed  for  want  of  laying  a  place  of 
the  undertaking.  2  Hen  7,  11,  7  Hen.  4,  14,  these  cases  are  all  in  point, 
and  the  action  adjudged  to  lie  upon  the  undertaking. 

2.  Now  to  give  the  reason  of  these  cases,  the  gist  of  these  actions  is  the 
undertaking.  The  party's  special  assumpsit  and  undertaking  obliges  him 
so  to  do  the  thing,  that  the  bailor  come  to  no  damage  by  his  neglect.     And 


COGGSV.     BARNARD.  211 

the  bailee  in  this  case  shall  answer  accidents,  as  if  the  goods  are  stolen  ; 
but  not  such  accidents  and  casualties  as  happen  by  the  act  of  God,  as  fire, 
tempest,  &c.  So  it  is  1  Jones,  179.  Pcxlm.  548  ;  for  the  bailee  is  not 
bound  upon  any  undertaking  against  the  act  of  God.  Justice  Jones,  in  that 
case,  puts  the  case  of  the  22  Ass.,  where  the  ferryman  overiaded  the  boat. 
That  is  no  authority,  I  confess,  in  that  case  :  for  the  action  there  is  founded 
upon  the  ferryman's  act,  viz.  the  overlading  the  boat.  But  it  would  not 
have  lain,  says  he,  without  that  act  ;  because  the  ferryman,  notwithstanding 
his  undertaking,  was  not  bound  to  answer  for  storms.  But  that  act  would 
charge  him  without  any  undertaking,  because  it  was  his  own  wrong  to 
overlade  the  boat.  But  bailees  are  chargeable  in  case  of  other  accidents, 
because  they  have  a  remedy  against  the  wrong-doers :  as  in  case  the  goods 
are  stolen  from  him,  an  appeal  of  robbery  will  *lie,  wherein  he  may  ^  *op:-| 
recover  the  goods,  which  cannot  be  had  against  enemies,  in  case  L  -' 
they  are  plundered  by  them  ;  and  therefore  in  that  case  he  shall  not  be 
answerable.  But  it  is  objected,  that  there  is  no  consideration  to  ground  the 
action  upon.  But  as  to  this,  the  difference  is,  between  being  obliged  to  do 
the  thing,  and  answering  for  things  which  he  had  taken  into  his  custody 
upon  such  an  undertaking.  An  action  indeed  will  not  lie  for  not  doing  the 
thing,  for  want  of  a  sufficient  consideration  :  but  yet  if  the  bailee  will  take 
the  goods  into  his  custody,  he  shall  be  answerable  for  them  ;  for  the  taking 
the  goods  into  his  custody  is  his  own  act.  And  this  action  is  founded  upon 
the  warranty,  upon  which  I  have  been  contented  to  trust  you  with  the 
goods,  which  without  such  a  warranty  I  would  not  have  done.  And  a  man 
may  warrant  a  thing  without  any  consideration.  And  therefore  when  I  have 
reposed  a  trust  in  you  upon  your  undertaking,  if  I  sufl^er  when  I  have 
so  relied  upon  you,  1  shall  have  my  action.  Like  the  case  of  the  Countess  of 
Salop.  An  action  will  not  lie  against  a  tenant  at  will  generally,  if  the 
house  is  burnt  down.  But  if  the  action  had  been  founded  upon  a  special 
undertaking,  as  that  in  consideration  the  lessor  would  let  him  live  in  the 
house  he  promised  to  deliver  up  the  house  to  him  again  in  as  good  repair 
as  it  was  then,  the(c)  action  would  have  lain  upon  that  special  undertaking. 
But  there  the  action  was  laid  generally. 

3.  Southcote's  case(c?)  is  a  strong  authority  ;  and  the  reason  of  it  comes 
home  to  this,  because  the  general  bailment  is  there  taken  to  be  an  under- 
taking to  deliver  the  goods  at  all  events,  and  so  the  judgment  is  founded 
upon  the  undertaking.  But  I  cannot  think  that  a  general  bailment  is  an 
undertaking  to  keep  the  goods  safely  at  all  events  :  that  is  hard.  Coke 
reports  the  case  upon  that  reason ;  but  makes  a  difference,  where  a  man 
undertakes  a  case  specially,  to  keep  goods  as  he  will  keep  his  own.  Let 
us  consider  the  reason  of  the  case :  for  nothing  is  law  that  is  not  reason. 
Upon  consideration  of  the  authorities  there  cited,  I  find  no  such  difference. 
In  9  Edw.  4,  40,  b.  there  is  such  an  opinion  by  Danby.  The  case  in  3 
Hen.  7,  4,  was  of  a  special  bailment,  so  that  that  case  cannot  go  very  far  in 
the  matter.     6  Hen.  7,  12,  there  is  such  an  opinion  by  the  by.     And  this 

(c)  Vide  Com.  627.  Burr.  1638. 

((/)  That  notion  in  Southcote's  case,  4  Rep.  83,  b,  that  a  general  bailment,  and  a  bail- 
ment to  be  safely  kept,  is  all  one,  was  denied  to  be  law  by  the  whole  court,  ex  relatione 
m'ri  Bunbury.     Note  to  3d  ed. 


213  smith's    leading   cases. 

is  all  the  foundation  of  Southcote's  case.  But  there  are  cases  there  cited, 
r  *ftfi  1  '^^^'^'^  ^^^  stronger  *against  it,  as  10  Hen.  7,  26.  29  Ass.  28,  the 
•-  ■'  case  of  a  pawn.  My  Lord  Coke  would  distinguish  that  case  of  a  pawn 

from  a  bailment,  because  the  pawnee  has  a  special  property  in  the  pawn  ;  but 
that  will  make  no  difference,  because  he  has  a  special  property  in  the  thing 
bailed  to  him  to  keep,  8  Ed.  2,  Fitzh.  Detinue,  59,  the  case  of  goods  bailed 
to  a  man,  and  locked  up  in  a  chest  and  stolen  ;  and  for  the  reason  of  that 
case,  sure  it  would  be  hard  that  a  man  that  takes  goods  into  his  custody  to 
keep  for  a  friend,  purely  out  of  kindness  to  his  friend,  shall  be  chargeable 
at  all  events.  But  then  it  is  answered  to  that,  that  the  bailee  might  take 
them  specially.  There  are  many  lawyers  who  do  not  know  that  difference  ; 
or  however  it  may  be  with  them,  half  mankind  never  heard  of  it.  So,  for  these 
reasons,  I  think,  a  general  bailment  is  not,  nor  cannot  be  taken  to  be,  a  special 
undertaking  to  keep  the  goods  bailed  safely  against  all  events.  But  if(e)  a 
man  does  undertake  specially  to  keeps  goods  safely,  that  is  a  warranty,  and 
will  oblige  the  bailee  to  keep  them  safely  against  perils,  where  he  has  his 
remedy  over,  but  not  against  such  where  he  has  no  remedy  over. 

Holt,  C.  J.  The  case  is  shortly  this.  This  defendant  undertakes  to 
remove  goods  from  one  cellar  to  another,  and  there  lay  them  down  safely  ; 
and  he  managed  them  so  negligently,  that  for  want  of  care  in  him  some  of 
the  goods  were  spoiled.  Upon  not  guilty  pleaded,  there  has  been  a  verdict 
for  the  plaintiff,  and  that  upon  full  evidence,  the  cause  being  tried  before 
me  at  Guildhall.  There  has  been  a  motion  in  arrest  of  judgment,  that  the 
declaration  is  insufficient,  because  the  defendant  is  neither  laid  to  be  a  com- 
mon porter,  nor  that  he  is  to  have  any  reward  for  his  labour,  so  that  the 
defendant  is  not  chargeable  by  his  trade,  and  a  private  person  cannot  be 
charged  in  an  action  without  a  reward. 

1  have  had  a  great  consideration  of  this  case ;  and  because  some  of  the  books 
make  the  action  to  lie  upon  the  reward,  and  some  upon  the  promise,  at  first  I 
made  a  great  question  whether  this  declaration  was  good.  But  upon  conside- 
ration, as  this  declaration  is,  I  think  the  action  will  well  lie.  In  order  to  show 
the  grounds  upon  which  a  man  shall  be  charged  with  goods  put  into  his  cus- 
tody, 1  must  show  the  several  sorts  of  bailments.  And  (/)  there  are  six  sorts  of 
bailments.  The  first  sorl(^)  of  bailment  is,  a  bare  naked  bailment  of  goods,  deliv- 

.  -,  ered  by  one  man  to  another  to  keep  *for  the  use  of  the  bailor;  and  this 
L  -"I  call  a  deposiliim,  and  it  is  that  sort  of  bailment  which  is  mentioned  in 
Southcote's  case.  The  second  sort  is,  when  goods  or  chattels  that  are  use- 
ful are  lent  to  a  friend  gratis,  to  be  used  by  him  ;  and  this  is  called  commo- 
datum,{h)  because  the  thing  is  to  be  restored  in  specie.  The  third  sort  is, 
when  goods  are  left  with  the  bailee  to  be  used  by  him  for  hire  ;  this  is 
called  locatio  et  conductio,  and  the  lender  is  called  locator,  and  the  bor- 
rower conductor.  The  fourth  sort  is,  when  goods  or  chattels  are  delivered 
to  another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of  him 
by  the  bailor ;  and  this  is  called  in  Latin  vadium,  and  in  English,  a  pawn, 
or  pledge.  The  fifth  sort  is,  when  goods  or  chattels  are  delivered  to  be  car- 
ried, or  something  is  to  be  done  about  them  for  a  reward  to  be  paid  by  the 
person  who  delivers  them  to  the  bailee,  who  is  to  do  the  thing  about  them. 

(e)  Vide  Jones,  44.  (/)  Vide  Jones,  35.         (g)  Just.  Inst.  lib.  3,  tit.  15,  text  3. 

(h)  Ibid,  text  2.     The  references  to  the  Inst,  in  this  case  are  by  Serj.  Hiil, 


COGGSV.     BARNARD.  213 

The  sixth  sort  is,  when  there  is  a  dehvery  of  goods  or  chattels  to  somebody 
who  is  to  carry  them,  or  to  do  something  about  them  gratis,  without  any 
reward  for  such  his  work  or  carriage,  which  is  this  present  case.  I  men- 
tion these  things,  not  so  much  that  they  are  all  of  them  so  necessary  in 
in  order  to  maintain  the  proposition  which  is  to  be  proved,  as  to  clear  the 
reason  of  the  obligation  which  is  upon  persons  in  cases  of  trust. 

As  to  the  first  sort,(/)  where  a  man  takes  goods  in  his  custody  to  keep  for 
the  use  of  the  bailor,  I  shall  consider  for  what  things  such  a  bailee  is 
answerable.  He  is  not  answerable  if  they  are  stolen  without  any  fault  in 
him,  neither  will  a  common  neglect  make  him  chargeable,  but  he  must  be 
guilty  of  some  gross  neglect.  There  is,  I  confess,  a  great  authority  against 
me  ;  where  it  is  held,  that  a  general  delivery  will  charge  the  bailee  to 
answer  for  the  goods  if  they  are  stolen,  unless  the  goods  are  specially 
accepted  to  keep  them  only  as  you  will  keep  your  own.  But(A:)  my  Lord 
Coke  has  improved  the  case  in  his  report  of  it  ;  for  he  will  have  it,  that  there 
is  no  difference  between  a  special  acceptance  to  keep  safely,  and  an  accept- 
ance generally  to  keep.  But  there  is  no  reason  nor  justice  in  such  a  case 
of  a  general  bailment,  and  where  the  bailee  is  not  to  have  any  reward,  but 
keeps  the  goods  merely  for  the  use  of  the  bailor,  to  charge  him  without  some 
default  in  him,(/)  For  if  he  keeps  the  goods  in  such  a  case  with  ordinary 
care,  he  has  performed  the  trust  reposed  in  him.  *But  according  ^  ^ 
to  this  doctrine  the  bailee  must  answer  for  the  wrongs  of  other  L  J 
people,  which  he  is  not,  nor  cannot  be,  sufficiently  armed  against.  If  the 
law  be  so,  there  must  be  some  just  and  honest  reason  for  it,  or  else  some 
universal  settled  rule  of  law  upon  which  it  is  grounded  ;  and  therefore  it  is 
incumbent  upon  them  that  advance  this  docrine,  to  show  an  undisturbed  rule 
and  practice  of  the  law  according  to  this  position.  But  to  show  that  the 
tener  of  the  law  was  always  otherwise,  1  shall  give  a  history  of  the  author- 
ties  in  the  books  in  this  matter;  and  by  them  show,  that  there  never  was 
any  such  resolution  given  before  Southcote's  case.  The  29  Ass.  28,  is  the 
first  case  in  the  books  upon  that  learning  ;  and  there  the  opinion  is,  that  the 
bailee  is  not  chargeable,  if  the  goods  are  stole.  As  for  8  Edw.  2,  Fitzh. 
Detinue,  59,  where  goods  were  locked  in  a  chest,'  and  left  with  the  bailee, 
and  the  owner  took  away  the  key,  and  the  goods  were  stolen,  it  was  held 
that  the  bailee  should  answer  for  the  goods  ;  that  case  they  say  differs, 
because  the  bailor  did  not  trust  the  bailee  with  them.  But  I  cannot  see  the 
reason  of  that  difference,  nor  why  the  bailee  should  not  be  charged  with 
goods  in  a  chest,  as  well  as  with  goods  out  of  a  chest :  for  the  bailee  has  as 
little  power  over  them  when  they  are  out  of  a  chest,  as  to  any  benefit  he 
might  have  by  them,  as  when  they  are  in  a  chest ;  and  he  has  as 
great  power  to  defend  them  in  one  case  as  in  the  other.  The  case  of  9  Edw. 
4,  40,  b,  was  not  a  debate  at  bar  ;  for  Danby  was  but  a  counsel  then  :  though 
he  had  been  chief  justice  in  the  beginning  of  Ed.  4,  yet  he  was  removed, 
and  restored  again  upon  the  restitution  of  Hen.  6,  as  appears  by  Dugdale's 
Chronica  Series.  So  that  what  he  said  cannot  be  taken  to  be  any  authority, 
for  he  spoke  only  for  his  client ;  and  Genny,  for  his  client  said  the  contrary. 
The  case  in  3  Hen.  7,  4,  is  but  a  sudden  opinion,  and  that  by  half  the  court ; 
and  yet  that  is  the  only  ground  for  this  opinion  of  my  Lord  Coke,  which 

(0  Vide  Joncf?,  36.  {k)  Vide  L.  Ray.  655.     Jones,  46. 

(i)  Vide  Jones,  46.  62. 


214  smith's   leading   cases. 

besides  has  improved.  But  the  practice  has  been  always,  at  Guildhall,  to 
disallow  that  to  be  a  sufficient  evidence  to  charge  the  bailee.  And  it  was 
practised  so  before  my  time,  all  Chief  Justice  Pemberton's  time,  and  ever 
since,  against  the  opinion  of  that  case.  When  I  read  Southcote's  case 
heretofore,  I  was  not  so  discerning  as  my  brother  Powys  tells  us  he  was, 
to  disallow  that  case  at  first ;  and  came  not  to  be  of  this  opinion  till  I  had 
,-  o-^  -.  well  considered  and  digested  *that  matter.  Though  I  must  confess, 
L  -I  reason  is  strong  against  the  case,  to  charge  a  man  for  doing  such  a 
friendly  act  for  his  friend  ;  but  so  far  is  the  law  from  being  so  unreason- 
able, that  such  a  bailee  is  the  least  chargeable  for  neglect  of  any.  For  if 
he(?n)  keeps  the  goods  bailed  to  him  but  as  he  keeps  his  own,  though  he 
keeps  his  own  but  negligently,  yet  he  is  not  chargeable  for  them  ;  for  the 
keeping  them  as  he  keeps  his  own  is  an  argument  of  his  honesty.  A  for- 
tiori, he  shall  not  be  charged  where  they  are  stolen  without  any  neglect  in 
him.  Agreeably  to  this  is  Bracton,  lib.  3,  c.  2,  99,  b.  'Is  apud  quem  res 
deponitur,  re  obligatur,  et  de  ea  re,  quara  accepit,  restituenda  tenetur,  et 
etiam  ad  id,  si  quid  in  re  deposita  dolo  commiserit ;  culpse  autem  nomine 
non  tenetur,  scilicit  desidise  vel  negligentite,  quia  qui  negligenti  amico  rem 
coslodiendam  tradit,  sibi  ipsi  et  propria?  fatuitali  hoc  habet  imputare.'  As 
suppose  the  bailee  is  an  idle,  careless,  drunken  fellow,  and  comes  home 
drunk,  and  leaves  all  his  doors  open,  and  by  reason  thereof  the  goods  hap- 
pen to  be  stolen  and  his  own  ;  yet  he  shall  not  be  charged,  because  it  is  the 
bailor's  own  folly  to  trust  such  an  idle  fellow. (?«)  So  that  this  sort  of  bailee 
is  the  least  responsible  for  neglects,  and  under  the  least  obligation  of  any 
one,  being  bound  to  no  other  care  of  the  bailed  goods  than  he  takes  of  his 
own.  This  Bracton  I  have  cited  is,  I  confess,  an  old  author;  but  in  this 
his  doctrine  is  agreeable  to  reason,  and  to  what  the  law  is  in  other  coun- 
tries. The  civil  law  is  so,  as  you  have  it  in  Justinian's  Inst.  lib.  3,  tit.  15. 
There  the  law  goes  further  ;  for  there  it  is  said:  'Ex  eo  solo  tenetur,  si 
quid  dolo  commiserit:  culpse  autem  nomine,  id  est,  desidise  ac  negligentise, 
non  tenetur.  Itaque  securus  est  qui  parum  diligenter  custoditam  rem  furto 
amiserit,  quia  qui  negligenti  amico  rem  custodiendam  tradit,  non  ei,  sed  suse 
facilitati,  id  imputare  debet.'  So  that  such  a  bailee  is  not  chargeable  with- 
out an  apparent  gross  neglect.  And  if  there  is  such  a  gross  neglect,  it  is 
looked  upon  as  an  evidence  of  fraud.  Nay,  suppose  the  bailee  undertakes 
safely  and  securely  to  keep  the  goods,  in  express  words ;  yet  even  that 
would  not  charge  him  with  all  sorts  of  neglects  ;  for  if  such  a  promise  were 
put  into  writing,  it  would  not  charge  so  far,  even  then.  Hob.  34,  a  cove- 
nant, that  the  covenantee  shall  have,  occupy,  and  enjoy  certain  lands,  does 
not  bind  against  the  acts  of  wrong-doers,  3  Cro.  214,  ace,  2  Cro.  425,  ace, 
„  ,  upon  *a  promise  for  quiet  enjoyment.  And  if  a  promise  will  not 
L  J  charge  a  man  against  wrong-doers,  when  put  in  writing,  it  is  hard 
it  should  do  it  more  so  when  spoken.  Doct.  &  Stud.  130,  is  in  point,  that 
though  a  bailee  do  promise  to  re-deliver  goods  safety,  yet,  if  he  have  nothing 
for  them,  he  will  not  be  answerable  for  the  acts  of  a  wrong-doer.  So  that 
there  is  neither  sufficient  reason  nor  authority  to  support  the  opinion  in 
Southcote's  case.  If  the  bailee  be  guilty  of  gross  negligence,  he  will  be 
chargeable,  but  not  for  any  ordinary  neglect. 

(m)  Ilanise  Vinn.  p.  605. 

(n)  Sed  vide  Doorman  v.  Jenkins,  2  A.  &  E.  256,  post,  96,  in  nola. 


COGGS     V.     BARNARD.  215 

As  to  the  second  sort  of  bailment,  viz.  commodatum,  or  lending  gratis,  the 
borrower  is  bound  to  the  strictest  care  and  diligence  to  keep  the  goods,  so 
as  to  restore  them  back  again  to  the  lender ;  because  the  bailee  has  a  benefit 
by  the  use  of  them,  so  as  if  the  bailee  be  guilty  of  the  least  neglect  he  will 
be  answerable  :  as  if  a  man  should  lend  another  a  horse  to  go  westward,  or 
for  a  month  ;  if  the  bailee  go  northward,  or  keep  the  horse  above  a  month, 
if  any  accident  happen  to  the  horse  in  the  northern  journey,  or  after  the 
expiration  of  the  month,  the  bailee  will  be  chargeable  ;  because  he  has  made 
use  of  the  horse  contrary  to  the  trust  he  was  lent  to  him  under  ;  and  it  may 
be,  if  the  horse  had  been  used  no  otherwise  than  he  was  lent,  the  accident 
would  not  have  befallen  him.  This  is  mentioned  in  Bracton,  ubi  supra  : 
his  words  are,(o)  '  Is  autem  cui  res  aliqua  utenda  datur,  re  obligatur,  quae 
commodata  est,  sed  magna  differentia  est  inter  mutuum  et  commodatum  ; 
quia  is  qui  rem  mutuam  accepit,  ad  ipsam  restituendam  tenetur,  vel  ejus 
pretium,  si  forte  incendio,  ruina,  naufragio,  aut  latronum  vel  hostium  incursu, 
consumpta  fuerit,  vel  deperdita,  sublracta  vel  oblata.  Et  qui  rem  utendam 
accepit,  non  sufficit  ad  rei  cuslodiatn,  quod  talem  diligentiam  alhibeat,  qua- 
lem  suis  rebus  propriis  alhibere  solet,  si  alias  earn  diligentius  poluit  custo- 
dire  ;  ad  vim  autem  majorem,  vel  casus  fortuitos  non  tenetur  quis,  nisi  culpa 
sua  intervenerit.  Ut  si  rem  sibi  commodatum  domi,  secum  detulerit  cum 
peregre  profeclus  fuerit,  et  illam  incursu  hostium  vel  prasdonum,  vel  nau- 
fragio, amiserit,  non  est  dubium  quin  ad  rei  restitutionem  teneatur.'  I  cite 
this  author,  though  I  confess  he  is  an  old  one,  because  his  opinion  is  rea- 
sonable, and  very  much  to  my  present  purpose,  and  there  is  no  authority  in 
the  law  to  the  contrary.  But  if  the  bailee  put  his  horse  in  his  stable,  and 
he  were  stolen  from  thence,  the  bailee  shall  not  be  *answerable  for  r  *ni  n 
him.  But  if  he  or  his  servant  leave  the  house  or  stable  doors  open,  L  -^ 
and  the  thieves  take  the  opportunity  of  that  and  steal  the  horse,  he  will  be 
chargeable  ;  because  the  neglect  gave  the  thieves  the  occasion  to  steal  the 
horse.  Bracton  says  the  bailee  must  use  the  utmost  care  ;  but  yet  he  shall 
not  be  chargeable,  where  there  is  such  a  force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio,  or  lending  for  hire,  in  this 
case  the  bailee  is  also  bound  to  take  the  utmost  care,  and  to  return  the  goods 
when  the  time  of  the  hiring  has  expired.  And  here  again  I  must  recur  to 
my  old  author,  fol.  62,  b. :(;;)  '  Q,ui  pro  usu  vestimentorum  auri  vel  argenti, 
vel  alterius  ornamenti,  vel  jumenti,  mercedem  dederit  vel  promiserit,  talis 
ab  eo  desideratur  custodia,  qualem((/)  diligentissimus  paterfamilias  suis  rebus 
adhibet,  quam  si  prcDsliterit  et  rem  aliquo  casu  amiserit,  ad  rem  restituen- 
dam non  tenebitur.  Nee  sufiicit  aliquem  talem  diligentiam  adhibere,  qua- 
lem  suis  rebus  propriis  adhiberet,  nisi  talem  adhibuerit,  de  qua  superius 
dictum  est.'  From  whence  it  appears,  that  if  goods  are  let  out  for  a  reward, 
the  hirer  is  bound  to  the(r)  utmost  diligence,  such  as  the  most  diligent 
father  of  a  family  uses  ;  and  if  he  uses  that,  he  shall  be  discharged.  But 
every  man,  how  diligent  soever  he  be,  being  liable  to  the  accident  of  rob- 
bers, though  a  diligent  man  is  not  so  liable  as  a  careless  man,  ihe(s)  bailee 
shall  not  be  answerable  in  this  case,  if  the  goods  are  stolen. 


(o)  This  is  cited  from  Bracton,  but  is  in  effect  the  text  of  Just.  Inst.  lib.  3,  tit.  15,  i 
(jD)  Just.  Inst.  lib.  2,  tit.  25,  text  5.  (q)  Vide  Jones,  87. 

(r)  Cornm.  Vinn.  in  Just.  Inst.  lib.  3,  tit,  25,  text  5,  n.  2,  3. 
(s)  D.  ace.  Dost.  1087. 


216  smith's  leading   cases. 

As  to  the  fourth  sort  of  bailment,  viz,  vadium,  or  a  pawn,  in  this  I  shall 
consider  two  things  ;  first,  what  property  the  pawnee  has  in  the  pawn  or 
pledge  ;  and,  secondly,  for  what  neglects  he  shall  make  satisfaction.  As  to 
the  first,  he  has  a  special  property,  for(/)  the  pawn  is  a  securing  to  the  paw- 
nee, that  he  shall  be  repaid  his  debt,  and  to  compel  the  pawnor  to  pay  him. 
But  if  the  pawn  be  such  as  it  Avill  be  the  worse  for  using,  the(«)  pawnee 
cannot  use  it,  as  clothes,  &c. ;  but  if  it  be  such  as  will  be  never  the  worse, 
as  if  jewels  for  the  purpose  were  pawned  to  a  lady,  she(t))  might  use  them: 
but  then  she  must  do  it  at  her  peril ;  for  whereas,  if  she  keeps  them  locked 
up  in  her  cabinet,  if  her  cabinet  should  be  broke  open,  and  the  jewels  taken 
from  thence,  she  would  be  excused ;  if  she  wears  ihem  abroad,  and  is  there 
robbed  of  them,  she  will  be  answerable.  And  the  reason  is,  because  the 
r  *Qo  n  pawn  is  in  the  nature  of  a  deposit,  *and,  as  such,  is  not  liable  to  be 
L  -*  used.  And  to  this  effect  is  Ow.  123.  But  if  the  pawn  be  of  such 
a  nature,  as  the  pawnee  is  at  any  charge  about  the  thing  pawned,  to  main- 
tain it,  as  a  horse,  cow,  &c.,  then(a:)  the  pawnee  may  use  the  horse  in  a 
reasonable  manner,  or  milk  the  cow,  &c.,  in  recompense  for  the  meat.  As 
to  the  second  point,  Bracton,  99,  b,  gives  you  the  answer  : — '  Creditor,  qui 
pignus  accepit,  re  obligatur,  et  ad  illam  restituendam  tenetur  ;  et  cum  hujus- 
modi  res  in  pignus  data  sit  utriusque  gratia,  scilicit  debitoris,  quo  magnis  ei 
pecunia  crederetur,  et  creditoris  quo  magis  et  in  tuto  sit  creditum,  sufficit 
ad  ejus  rei  custodiam  diligentiam  exaclam  adhibere,  quam  si  prsestiterit,  et 
rem  casu  amiserit,  securus  esse  possit,  nee  impedietur  creditum  petere.'(i/) 
In  effect,  if  a  creditor  takes  a  pawn,  he  is  bound  to  restore  it  upon  the  pay- 
ment of  the  debt  ;  but  yet  it  is  sufficient,  if  the  pawnee  use  true  diligence, 
and  he  will  be  indemnified  in  so  doing,  and  notwithstanding  the  loss,  yet  he 
shall  restore  to  the  pawnor  for  his  debt.  Agreeable  to  this  is  29  Ass.  28, 
and  Southcote's  case  is.  But,  indeed,  the  reason  given  in  Southcote's  case 
is,  because  the  pawnee  has  a  special  property  in  the  pawn.  But  that  is  not 
the  reason  of  the  case  ;  and  there  is  another  reason  given  for  it  in  the  book 
of  Assize,  which  is  indeed  the  true  reason  of  all  these  cases,  that  the  law 
requires  nothing  extraordinary  of  the  pawnee,  but  only  that  he  shall  use  an 
ordinary  care  for  restoring  the  goods.  But,  indeed,  if  the  money  for  which 
the  goods  were  pawned  be  tendered  to  the  pawnee  before  they  are  lost,  then 
the  pawnee  shall  be  answerable  for  them  ;  because  the  pawnee,  by  detain- 
in  f  them  after  the  tender  of  the  money,  is  a  wrongdoer,  and  it  is  a  wrongful 
detainer  of  the  goods,  and  the  special  property  of  the  pawnee  is  determined. 
And  a  man  that  keeps  goods  by  wrong  must  be  answerable  for  them  at  all 
events;  for  the  detaining  of  them  by  him  is  the  reason  of  the  loss.  Upon 
the  same  difference  as  the  law  is  in  relation  to  pawns,  it  will  be  found  to 
stand  in  relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  delivery  to  carry  or  otherwise  manage, 
for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of  two  sorts  ;  either  a 
delivery  to  one  that  exercises  a  public  employment,  or  a  delivery  to  a  pri- 
vate person.     First,  if  it  be  a  person  of  the  first  sort,  and  he  is  to  have  a 

(0  S.  P.  3  Salk.  2G8.     Holt,  528.     Salk.  522. 

(u)  Ibid.  (»)  Tbid.     Vide  Jones,  80,  81. 

(x)  S.  P.  3  Salk.  268.     Holt,  528.     Salk.  ,522.     Vide  Jones,  80,  81. 

ly)  This  is  also  the  text  of  Just.  Inst.  lib.  3,  tit.  15,  text  4.     De  pignore. 


COGGS     V.     BARNARD.  217 

reward,  he  is  bound  *to  answer  for  the  goods  at  all  events.  And  this  j.  ^„  .. 
is  the  case  of  the  common  carrier,  common  ho3'man,  master  of  a  L  -^ 
ship,  &c. :  which  case  of  a  master  of  a  ship  was  first  adjudged,  26  Car.  2, 
in  the  case  of  Mors  v.  Slew,  Raym.  220,  1  Vent.  190.  238.  The  law 
charges  this  person  thus  entrusted  to  carry  goods,  against  all  events,  but 
acts  of  God,  and  of  the  enemies  of  the  king.  For  though  the  force  be  never 
so  great,  as  if  an  irresistible  multitude  of  people  should  rob  him,  neverthe- 
less he  is  chargeable.  And  this  is  a  politic  establishment,  contrived  by  the 
policy  of  the  law, (2-)  for  the  safety  of  all  persons,  the  necessity  of  whose 
affairs  oblige  them  to  trust  these  sorts  of  persons,  that  they  may  be  safe  in 
their  ways  of  dealing :  for  else  these  carriers  might  have  an  opportunity  of 
undoing  all  persons  that  had  any  dealings  with  them,  by  combining  with 
thieves,  &c.,  and  yet  doing  it  in  such  a  clandestine  manner  as  would  not  be 
possible  to  be  discovered.  And  this  is  the  reason  the  law  is  founded  upon 
in  that  point.  The  second  sort  are  bailies,  factors,  and  such  like.  And 
though  a  bailee  is  to  have  a  reward  for  his  management,  yet  he  is  only  to 
do  the  best  he  can  ;  and  if  he  be  robbed,  &c.  it  is  a  good  account.  And  the 
reason  of  his  being  a  servant  is  not  the  thing;  for  he  is  at  a  distance  from 
his  master,  and  acts  at  discretion,  receiving  rents  and  selling  corn,  &c.  And 
yet  if  he  receives  his  master's  money,  and  keeps  it  locked  up  with  a  reason- 
able care,  he  shall  not  be  answerable  for  it,  though  it  be  stolen.  But  yet  this 
servant  is  not  a  domestic  servant,  nor  under  his  master's  immediate  care. 
But  the  true  reason  of  the  case  is,  it  would  be  unreasonable  to  charge  him 
with  a  trust,  further  than  the  nature  of  the  thing  puts  it  in  his  power  to  per- 
form it.  But  it  is  allowed  in  the  other  cases,  by  reason  of  the  necesssity  of 
the  thing.     The  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is  to  have 
no  reward  for  his  pains,  but  yet  that  by  his  ill  management  the  goods  are 
spoiled.  Secondly,  it  is  to  be  understood,  that  there  was  a  neglect  in  the 
managem.ent.  But  thirdly,  if  it  had  appeared  that  the  mischief  happened 
by  any  person  that  met  the  cart  in  the  way,  the  bailee  had  not  been  charge- 
able. As  if  a  drunken  man  had  come  by  in  the  streets,  and  had  pierced 
the  cask  of  brandy  ;  in  this  case  the  defendant  had  not  been  answerable  for 
it,  ^because  he  was  to  have  nothing  for  his  pains.  Then  the  bailee  ^  „  -, 
having  undertaken  to  manage  the  goods,  and  having  managed  them  L  -^ 
ill,  and  so  by  his  neglect  a  damage  has  happened  to  a  bailor,  which  is  the 
case  in  question,  what  will  you  call  this?  In  Bracton,  lib.  3,  100,  it  is 
called  mandatum.  It  is  an  obligation  which  arises  ex  mandato.  It  is  what 
we  call  in  English  an  acting  by  commission.  And  if  a  man  acts  by  com- 
mission for  another  gratis,  and  in  the  executing  his  commission  behaves 
himself  negligently,  he  is  answerable.  Vinnius  in  his  Commentaries  upon 
Justinian,  lib.  .3,  tit.  27.  684,  defines  mandatum  to  be  contractus  quo  aliquid 
gratuito  gerendum  committitur  et  accipitur.  This  undertaking  obliges  the 
undertaker  to  a  diligent  management.  Bracton,  ubi  supra,  says,  Contrahitur 
etiam  obligatio  non  solum  scripto  et  verbis,  sed  et  consensu,  sicut  in  contracti- 
bus  bonce  fidei ;  ut  in  emptionibus,  venditionibus,  locationibus.conductionibus, 
societatibus,  et  mandatis."     I  do  not  find  this  word  in  any  other  author  of 

(z)  Just.  Inst.  lib.  4,  tit.  5,  text  3.  Vide  Vinn.  Comm.  in  Just.  Inst.  lib.  3,  tit.  27,  text 
II,  n.  2. 


218  smith's   leading   cases. 

our  law,  besides  in  this  place  in  Bracton,  which  is  a  full  authority  if  it  be 
not  thought  loo  old.     But  it  is  supported  by  good  reason  and  authority. 

The  reasons  are,  first,  because  in  such  a  case,  a  neglect  is  a  deceit  to  the 
bailor.  For,  when  he  entrusts  the  bailee  upon  his  undertaking  to  be  careful, 
he  has  put  a  fraud  upon  the  plaintiff  by  being  negligent,  his  pretence  of 
care  being  the  persuasion  that  induced  the  plaintiff  to  trust  him.  And  a 
breach  of  a  trust  undertaken  voluntarily  will  be  a  good  ground  for  an  action. 

1  Roll.  Abr.  10.  2  Hen.  7,  11,  a  strong  case  to  this  matter.  There  the 
case  was  an  action  against  a  man  who  had  undertaken  to  keep  an  hundred 
sheep,  for  letting  them  be  drowned  by  his  default.  And  there  the  reason 
of  the  judgment  is  given,  because  when  the  party  has  taken  upon  him  to 
keep  the  sheep,  and  after  suffers  them  to  perish  in  his  default ;  inasmuch  as 
he  has  taken  and  executed  his  bargain,  and  has  them  in  his  custody,  if,  after, 
he  does  not  look  to  them,  an  action  lies.  For  here  is  his  own  act,  viz.,  his 
agreement  and  promise,  and  that  after  broke  of  his  side,  that  shall  give  a 
sufficient  cause  of  action. 

But  secondly,  it  is  objected,  that  there  is  no  consideration  to  ground  this 
promise  upon,  and  therefore  the  undertaking  is  but  nudum  pactum.  But 
lo  this  I  answer,  that  the  owner's  trusting  him  with  the  goods  is  a  sufhcient 
r  #0^^  "1  consideration  to  *oblige  him  to  a  careful  management.  Indeed  if  the 
L  -'  agreement  had  been  executory,  to  carry  these  brandies  from  the  one 
place  to  the  other  such  a  daj',  the(a)  defendant  had  not  been  bound  to  carry 
them.  But  this  is  a' different  case,  for  assumpsit  does  not  only  signify  a 
future  agreement,  but  in  such  a  case  as  this,  it  signifies  an  actual  entry 
upon  the  thing,  and  taking  the  trust  upon  himself.  And  if  a  man(6)  will 
do  that,  and  miscarries  in  the  performance  of  his  trust,  an  action  will  lie 
against  him  for  that,  though  nobody  could  have  compelled  him  to  do  the 
thing.  The  19  Hen.  6,  49,  and  the  other  cases  cited  by  my  brothers,  show 
that  this  is  the  difference.  But  in  the  11  Hen.  4,  33,  this  difference  is 
clearly  put,  and  that  is  the  only  case  concerning  this  matter,  which  has  not 
been  cited  by  my  brothers.  There  the  action  was  brought  against  a  car- 
penter, for  that  he  had  undertaken  to  build  the  plaintiff  a  house  within  such 
a  time,  and  had  not  done  it,  and  it  was  adjudged  the  action  would  not  lie. 
But  there  the  question  was  put  to  the  court — what  if  he  had  built  the  house 
unskilfully? — and  it  is  agreed  in  that  case  an  action  would  have  lain. 
There  has  been  a  question  made,  if  I  deliver  goods  to  A.,  and  in  considera- 
tion thereof  he  promises  to  re-deliver  them,  if  an  action  will  lie  for  not  re- 
delivering them  ;  and  in  Yelv.  4,  judgment  was  given  that  the  action  would 
lie.  But  that  judgment  was  afterwards  reversed;  and,  according  to  that 
reversal,  there  was  judgment  afterwards  entered  for  the  defendant  in  the 
like  case.  Yelv.  128.  But  those  cases  were  grumbled  at;  and  the  reversal 
of  that  judgment  in  Yelv.  4,  was  said  by  the  judges  to  be  a  bad  resolution  ; 
and  the  contrary  to  that  reversal  was  afterwards  most  solemnly  adjudged  in 

2  Cro.  667.  Tr,  21  Jac.  1,  in  the  King's  Bench,  and  that  judgment  affirmed 
upon  a  writ  of  error.  And  yet  there  is  no  benefit  to  the  defendant,  nor  no 
consideration  in  that  case,  but  the  having  the  money  in  his  possession,  and 
being  trusted  wiih  it,  and  yet  that  was  held  to  be  a  good  consideration. 
And  so  a  bare  being  trusted  with  another  man's  goods  must  be  taken  to  be 

(a)  Vide  Jones,  5G,  57.  61.  (t)  Just.  Inst.  lib.  3,  tit.  27,  text  11. 


COGGS     V.     BARNARD. 


219 


a  sufficient  consideration,  if  the  bailee  once  enter  upon  the  trust,  and  take 
the  goods  into  his  possession.  The  declaration  in  the  case  of  Mors  v.  Slew, 
was  drawn  by  the  greatest  drawer  in  England  in  that  time  ;  and  in  that 
declaration,  as  it  was  always  in  all  such  cases,  it  was  thought  naost  prudent 
to  put  in,  that  a  *reward  was  to  be  paid  for  the  carriage.     And  so  -. 

it  has  been  usual  to  put  it  in  the  writ,  where  the  rule  is  by  original.  L  J 
I  have  said  thus  much  in  this  case,  because  it  is  of  great  consequence  that 
the  law  should  be  settled  in  this  point ;  but  I  do  not  know  whether  I  may 
have  settled  it,  or  may  not  rather  have  unsettled  it.  But  however  that 
happen,  I  have  stirred  these  points,  which  wiser  heads  in  time  may  settle. 
And  judgment  was  given  for  the  plaintiff". 


The  case  of  Coggs  v.  Barnard,  is  one 
of  the  most  celebrated  ever  decided  in 
Westminster  Hall,  and  justly  so,  since 
the  elaborate  judgment  of  Lord  Holt 
contains  the  first  well-ordered  exposition 
of  the  English  law  of  bailments.  The 
point  which  the  decision  directly  in- 
volves, viz.,  that  if  a  man  undertake  to 
carry  goods  safely,  he  is  responsible  for 
damage  sustained  by  them  in  the  car- 
riage through  his  neglect,  though  he 
was  not  a  common  carrier,  and  was  to 
have  nothing  for  the  carriage,  is  now 
clear  law,  and  forms  part  of  a  general 
proposition  in  the  law  of  principal  and 
agent,  which  may  be  stated  in  the  fol- 
lowing words:  viz. — The  confidence 
induced  by  H7ider taking  any  service 
for  another  is  a  sufficient  legal  conside- 
ration to  create  a  duty  in  the  "perforni- 
ance  of  it.  And  this  proposition  includes 
cases  stronger  than  that  reported  in  the 
text.  For  there  Bernard  had  under- 
taken to  lay  the  goods  down  safely, 
whereby  he  introduced  a  special  term 
into  Ijis  contract;  for  it  will  be  seen 
from  the  judgments,  particularly  Lord 
Holt's,  that  notwithstanding  what  was 
said  by  Lord  Coke  in  Southcote's  case, 
there  is  a  difference  between  the  effect 
of  a  gratuitous  undertaking  to  keep  or 
carry  goods,  and  a  gratuitous  undertak- 
ing to  keep  or  carry  them  safely.  But, 
under  the  rule  just  laid  down,  a  gratui- 
tous and  voluntary  agent  who  has  given 
no  special  undertaking,  tiiough  the  de- 
gree of  his  responsibility  is  greatly  in- 
ferior to  that  of  a  hired  agent,  is  yet 
bound  not  to  be  guilty  of  gross  negli- 
gence. This  proposition  is  affirmed  by 
several  recent  cases.  In  Wilkinson  v. 
Coverdale,  1  Esp.  74,  it  was  alleged  that 
the  defendant  had  undertaken  gratui- 


tously to  get  a  fire-policy  renewed  for 
the  plaintiff",  but  had,  in  doing  so,  ne- 
glected certain  formalities,  the  omission 
of  which  rendered  the  policy  inopera- 
tive. Upon  its  being  doubted  at  Nisi 
Prius  whether  an  action  would  lie  under 
those  circumstances,  Erskine  cited  a 
MS.  note  of  Mr.  J.  Bidler  in  Wallace  v. 
Telfair,  wherein  that  judge  had  ruled, 
under  similar  circumstances,  that  though 
there  was  no  consideration  for  one  par- 
ty's undertaking  to  procure  an  insurance 
for  another,  yet,  where  a  party  volunta- 
rily undertook  to  do  it,  and  proceeded 
to  carry  his  undertaking  into  effect  by 
getting  a  policy  underwritten,  but  did  it 
so  negligently  or  unskilfully  that  the 
party  could  derive  no  benefit  from  it,  in 
that  case  he  should  be  liable  to  an  ac- 
tion ;  in  which  distinction  Lord  Kenyon 
acquiesced.  So  in  Beauchamp  v.  Pow- 
ley,  1  M.  &.  Rob.  38,  where  the  defend- 
ant, a  stage-coachman,  received  a  parcel 
to  carry  gratis,  and  it  was  lost  upon  the 
road.  Lord  Tenterden  directed  the  jury 
to  consider  whether  there  was  great 
negligence  on  the  part  of  the  defendant, 
and  the  jury  thinking  that  there  was, 
found  a  verdict  against  him.  So,  too, 
in  Doorman  v.  Jenkin.s,  2  Adol.  &  Ell. 
256,  in  assumpsit  against  the  defendant, 
as  bailee  of  money  entrusted  to  him  to 
keep  without  reward,  it  was  proved  that 
he  had  given  the  following  account  of 
its  loss,  viz.  that  he  was  a  coffee-house 
keeper,  and  had  placed  the  money  in 
his  cash-box  in  the  tap-room,  which  had 
a  bar  in  it,  and  was  open  on  Sunday, 
though  the  other  parts  of  his  house 
were  not,  and  out  of  which  the  cash- 
box  was  stolen  upon  a  Sunday.  The 
Lord  Chief  Justice  told  the  jury  that  it 
did   not    follow,   from    the  defendant's 


220 


SMITH    S     LEADING     CASES. 


having  lost  his  own  money  at  the  same 
r  ;j.q~  -]  time  as  the  plaintift''s,  *that  he 
■-  -'  had  taken  such  care  of  the 
plaintiff's  money  as  a  reasonable  man 
would  ordinarily  take  of  his  own  ;  and 
he  added,  that  that  fact  afforded  no 
answer  to  the  action,  if  they  believed 
that  the  loss  occurred  from  gross  negli- 
gence. The  jury  having  found  a  verdict 
for  the  plaintiff,  the  court  refused  to  set 
it  aside. 

It  is  clear,  from  the  above  decisions, 
that  a  gratuitous  bailee  or  other  agent 
is  chargeable  when  he  has  been  guilty 
of  gross  negligence  ;  and  it  is  e(|ually 
clear,  both  Irom  the  words  of  the  judges 
in  several  of  the  above-cited  cases,  and 
also  from  express  decisions,  that  for  no 
other  kind  of  negligence  will  he  be  lia- 
ble, except  in  the  single  case  which 
shall  by-and-by  be  specified.  In  Door- 
man V.  Jenkins,  Patteson,  J.,  says,  "  It 
is  agreed  on  all  hands  that  the  defend- 
ant is  not  liable,  unless  he  has  been 
guilty  of  gross  negligence."  "  The 
counsel,"  says  Taunton,  J.,  "  properly 
admitted,  that  as  this  bailment  was  for 
the  benefit  of  the  bailor,  and  no  remu- 
neration was  given  to  the  bailee,  the 
action  could  not  be  maintainable  except 
in  tlie  case  of  gross  negligence."  In 
Shiells  V.  Blackburne,  1  H.  Bl.  158, 
the  defendant,  having  received  orders 
from  his  correspondent  in  Madeira  to 
send  a  quantity  of  cut  leather  thither, 
employed  Goodwin  to  execute  the  order. 
Goodwin  accordingly  prepared  it,  and 
sent  it,  along  with  a  case  of  leather  of 
the  same  description  belonging  to  him- 
self, to  the  defendant,  who,  to  save  the 
expense  of  two  entries,  voluntarily  and 
without  comjiensation,  by  agreement 
with  Goodwin,  made  one  entry  of  both 
cases,  but  entered  them  by  mistake  as 
wrought  leather,  instead  of  dressed 
leather,  in  consequence  of  which  mis- 
take the  cases  were  both  seized ;  and 
an  action  having  been  brought  by  the 
assignees  of  Goodwin,  who  had  become 
bankrupt,  against  the  defendant,  to 
recover  compensation  for  the  loss,  the 
general  issue  was  pleaded,  and  there 
was  a  verdict  for  the  plaintiff,  which  the 
court  set  aside,  and  granted  a  new  trial, 
upon  the  ground  that  the  defendant  was 
not  guilty  either  oi' gross  negligence  or 
fraud.  This  case  was  much  remarked 
upon  in  Doorman  v.  Jenkins,  which  it 
resembled  in  the  circumstance  that  the 
bailee  in  each  case  lost  property  of  his 
own  along  with  that  which  had  been 


entrusted  to  him.  "  The  case  of  Shiells 
V.  Blackburne,"  says  Taunton,  J.,  "cre- 
ated at  first  some  degree  of  doubt  in 
our  minds.  It  was  said  that  the  court 
in  that  case  treated  the  question  as  a 
matter  of  law,  and  set  aside  the  verdict, 
because  the  thing  charged,  viz.,  the 
false  description  of  the  leather  in  the 
entry,  did  not  amount  to  gross  negli- 
gence, and  therefore  the  jury  had  mis- 
taken the  law.  I  do  not  view  the  case 
in  that  light.  The  jury  there  found  that 
in  fact  the  defendant  had  been  guilty  of 
negligence,  but  the  court  thouglit  they 
had  drawn  a  wrong  conclusion  as  to 
that  fact."  In  Dartnall  v.  Howard,  4 
B.  &  C,  34.5,  the  declaration  stated, 
that  in  consideration  that  the  plaintiff, 
at  the  request  of  the  defendants,  would 
employ  tiiem  to  lay  out  1,400Z.  in  pur- 
chasing an  annuity,  the  defendants  pro- 
mised to  perform  and  fulfil  their  duty 
in  the  premises,  and  that  they  did  not 
perform  or  fulfil  their  duty,  but,  on  the 
contrary,  laid  out  the  money  in  the  pur- 
chase of  an  annuity  on  the  personal  se- 
curity of  H.  M.  Goold  and  Lord  Athen- 
ry,  who  were  both  in  insolvent  circum- 
stances. The  court,  after  verdict,  ar- 
rested the  judgment  upon  the  ground 
that  the  defendants  appeared  to  be  gra- 
tuitous agents,  and  it  was  not  averred 
that  they  had  acted  either  with  negli- 
gence or  dishonesty.  vSee  also  Bourne 
V.  Diggles,  2  Chitt.  311;  and  Moore  v. 
Mogue,  Cowp.  480. 

From  the  two  classes  of  cases  just 
enumerated,  it  is  plain  that  an  unpaid 
agent  is  liable  for  gross  negligence, 
and  equally  plain  that  he  is  liable  for 
nothing  less.  From  the  latter  of  these 
propositions  there  is,  however,  as  has 
been  already  stated,  one  exception,  and 
it  is  contained  in  the  following  words  of 
Lord  Loughborough,  when  delivering 
judgment  in  Shiells  v  Blackburne; — 
"  I  agree,"  said  his  lordship,  "  with  Sir 
William  Jones,  that  when  a  bailee  un- 
dertakes to  perform  a  gratuitous  act, 
from  which  the  bailor  alone  is  to  receive 
benefit,  then  the  bailee  is  only  liable  for 
gross  negligence.  But  if  a  man  gra- 
tuitously  undertakes  to  do  a  thing  to 
the  best  of  his  skill,  when  his  situation 
or  profossion  is  such  as  to  imply  skill, 
an  omission  of  that  skill  is  imputable  to 
him  as  gross  negligence.  If,  r  ^qa  i 
in  this  *case,  a  shipbroker,  or  ^  '  -" 
a  clerk  in  the  custom-house,  had  under- 
taken to  enter  the  goods,  a  wrong  entry 
would  in  tliem  be  gross  negligence,  be- 


C0GG3    V,     BARNARD. 


221 


cause  their  situation  and  employment 
necessarily  imply  a  competent  degree  of 
knowledge  in  making  such  entries."  It 
perhaps  may  be  more  correct  to  call  this 
a  distinction  engrafted  on  tiie  general 
doctrine,  than  an  exception  from  it ; 
since  it  does  not  render  any  unpaid 
agent  liable  for  less  than  gross  negli- 
gence;  but  renders  that  gross  negli- 
gence, in  some  agents,  which  would  not 
be  so  in  others. 

The  case  of  Coggs  v.  Bernard  derives 
most  of  its  celebrity  from  the  elaborate 
dissertation  upon  the  general  law  of 
Bailments  delivered  by  Lord  Holt  in  pro- 
nouncing judgment.  His  lordship,  as 
we  have  seen,  distributes  all  Bailments 
into  the  following  six  classes,  viz. : — 

1.  Depositum ;  or  a  naked  bailment  of 
goods,  to  be  kept  for  the  use  of  the 
bailor. 

2.  Commodatum.  Where  goods  or  chat- 
tels that  are  useful  are  lent  to  the 
h?Li\ee  gratis,  to  be  used  by  him. 

3.  Locatio  rei.  VVJiere  goods  are  lent  to 
the  bailee  to  be  used  by  him  ybr  hire. 

4.  Vadiwin.     Pawn. 

5.  Locatio  operis  faciendi.  Where 
goods  are  delivered  to  be  carried,  or 
something  is  to  be  done  about  them, 
for  a  reward  to  be  paid  to  the  bailee. 

6.  Mandalum.  A  delivery  of  goods  to 
somebody,  who  is  to  carry  them,  or 
do  something  about  them  gratis. 

Sir  William  Jones,  in  his  Treatise  on 
Bailments,  objects  to  this  division ; 
"  for,"  says  he,  "  in  truth  his  Jiflh  sort 
is  no  more  than  a  branch  of  the  third, 
and  he  might  with  equal  reason  have 
added  a  seventh,  since  the  Jifth  is  capa- 
ble of  another  subdivision."  The  Jiflh  of 
the  classes  enumerated  by  Lord  Holt  is, 
as  we  have  seen,  Locatio  operis  facien- 
di, i.  e.  where  goods  are  delivered  to  be 
carried,  or  something  is  to  be  done 
about  them  for  reward  to  be  paid  to  the 
bailee.  And  this,  willi  due  submission 
to  so  great  an  authority  as  Sir  William 
Jones,  cannot  be  reasonably  treated  as 
a  branch  of  the  third,  which  is  Locatio 
rei,  i.  e.  where  goods  are  lent  to  the 
bailee,  to  be  used  by  him  for  hire  ;  for 
there  exists  between  tiiem  this  essential 
difference,  viz.  that  in  cases  falling  un- 
der the  third  class,  or  locatio  rei,  the 
reward  is  paid  by  the  bailess  to  the  bail- 
or; whereas  in  cases  falling  under  the 
Jiflh  class,  or  locatio  operis  faciendi, 
the  reward  is  always  paid  by  the  bailor 
to  the  bailee.  It  is  true  that  in  Latin 
both  classes  are  described  by  the  word 


locatio,  which  probably  gave  rise  to  Sir 
William  Jones's  opinion  that  both  ought 
to  be  included  under  the  same  head; 
but  then  in  the  third  class,  locatio  rei, 
the  word  locatio  is  used  to  describe  a 
mode  of  bailment,  viz.  by  the  hiring  of 
the  thing  bailed ;  whereas  in  the  Jiflh 
class,  localio  operis  faciendi,  the  same 
word  locatio  is  used,  not  to  describe  any 
mode  of  bailment,  but  to  signify //ie  hir- 
ing of  the  man's  labour  wlio  is  to  ivork 
upon  the  thing  bailed;  for  as  to  the 
thing  bailed,  that  is  not  hired  at  all,  as 
it  is  in  cases  falling  within  the  third 
class.  If,  indeed,  Lord  Holt  had  been 
enumerating  the  different  sorts  of  hir- 
ings,  not  of  bailments,  he  would  no 
doubt,  like  the  civilians,  have  classified 
both  localio  rei  and  locatio  operis  under 
the  word  hiring,  since  in  one  case  goods 
are  hired,  and  m  the  other  labour.  But 
he  was  making  a  classification,  not  of 
hirings,  but  of  bailments;  and  since  in 
cases  of  locatio  rei  there  is  a  hiring  of 
the  thing  bailed,  and  in  cases  of  locatio 
operis  no  hiring  of  the  thing  bailed,  it 
was  impossible  to  place,  with  any  de- 
gree of  propriety,  two  sorts  of  bailment 
under  the  same  class,  one  of  which  is, 
and  the  other  of  which  is  not,  a  bail- 
ment by  way  of  hiring.  As  to  the  ob- 
jection that  Lord  Holt's  ffth  class  of 
bailments  is  capable  of  another  subdivi- 
sion, there  is  no  doubt  but  that  it  may 
be  split,  not  only,  as  Sir  W.  Jones  sug- 
gests, into  locatio  operis  faciendi,  where 
work  is  to  be  done  upon  the  goods,  and 
locatio  operis  mercium  vehendarum, 
where  they  are  to  be  carried,  but  into 
as  many  different  subdivisions  as  there 
are  difierent  modes  of  employing  labour 
upon  goods ;  and,  in  point  of  liict,  the 
civilians,  in  their  division  of  hirings, 
enumerated  another  class,  viz.  locatio 
custodaj,  or  the  hiring  of  care  to  be  be- 
stowed in  guarding  a  thing  bailed, 
which  is  omitted  by  Sir  W.  Jones.  For 
these  reasons,  it  is  submitted  that  Lord 
Holt's  classification  is  the  correct  one, 
and  it  remains  to  make  a  *few  r^an-[ 
remarks  on  each  ofthe  six  classes  ^  -' 
enumerated  by  him. 

1st.  With  respect  to  Depositum, 
which  it  will  be  recollected  is  a  bail- 
ment without  reward,  in  order  that  the 
bailee  may  keep  the  goods  for  the  bail- 
or, the  law  respecting  the  bailee's  re- 
sponsibility may  be  summed  up  in  the 
words  in  which  Lord  Holt  concludes  his 
observations  on  that  head  of  bailment, 
viz.   "  if  the  bailee  be  guilty  of  gross 


S22 


SMITHS    LEADING     CASES. 


negligence,  he  will  be  chargeable,  but 
not  for  any  ordinary  neglect."  An  im- 
portant modern  case  respecting  deposit 
has  been  already  cited  in  this  note,  viz. 
Doorman  v.  Jenkins,  2  Ad.  &  Ell.  256, 
where,  as  has  been  stated,  the  question 
whether  there  had  been  gross  negli- 
gence was  left  to  the  jury.  There  are 
some  expressions  in  this  part  of  Lord 
Holt's  judgment,  from  wliich  a  superfi- 
cial reader  might  infer  that  his  lordship 
thought  that  a  depositary  would  always 
be  secure,  provided  that  he  kept  the 
goods  deposited  with  as  much  care  as 
his  own ;  but  on  looking  attentively  at 
the  whole  context,  it  appears  that  his 
lordship  considered  the  bailee's  keeping 
the  goods  bailed  as  he  keeps  his  own, 
rather  as  an  argument  against  the  sup- 
position that  gross  negligence  had  been 
connnitted,  than  as  any  substantive 
ground  of  discharge.  "  The  keeping 
them,"  says  his  lordship,  "  as  he  kept 
his  own,  is  an  argument  of  his  honesty," 
and  consequently  an  argument  against 
the  supposition  o^ gross  negligence,  for 
Lord  Holt  considered  gross  negligence 
almost  the  same  thing  with  dishonesty. 
"If,"  says  he,  "there  be  such  gross 
neglect  it  is  looked  upon  as  evidence  of 
fraud."  And  it  is  quite  clear,  especially 
from  Doorman  v.  Jenkins,  that  gross 
negligence  may  be  committed  by  a  de- 
positary, altliough  he  may  have  kept  the 
property  entrusted  to  him  with  as  much 
care  as  his  own ;  and  that  if  it  be,  his 
negligence  of  his  own  goods  is  no  de- 
fence. See  also  Booth  v.  Wilson,  1  B. 
&  A.  6L  On  the  other  hand,  it  is  also 
clear  that  a  depositary  is  not  liable  for 
anything  short  of  gross  negligence ; 
and  although  Lord  Coke,  in  Southcote's 
case,  4  Rep.  83,  b.,  1  Tnst.  89,  a.  b.,  ex- 
pressed an  opinion  that  a  depositary  is 
responsible  if  the  goods  are  stolen  from 
him,  unless  he  accepts  them  specially 
to  keep  as  his  own,  that  doctrine  has 
been  completely  overthrown  by  Lord 
Holt  in  the  principal  case.  How  far  a 
depositary  may  add  to  his  responsibility 
by  inserting  special  terms  in  his  promise 
to  his  bailor,  is  a  point  not  by  any  means 
clearly  settled.  See  Kettle  v.  Broin- 
sale,  Willes,  118,  and  the  observations 
of  Sir  William  Jones  on  Southcote's 
case;  Jones  on  Bailments,  42,  3;  and 
of  Mr.  J.  Powell  in  the  principal  case; 
[and  see  M'Lean  v.  Rutherford,  8  Mis- 
souri, 109.]  A  depositary  has  no  right 
to  use  the  thing  entrusted  to  him.     Bac. 


Ab.  Bailment,  D.  Where  a  man  finds 
goods  belonging  to  another,  he  seems 
bound,  after  he  has  taken  them  mto  his 
possession,  to  the  same  degree  of  care 
with  a  depositary.  See  Isaac  v.  Clarke, 
2  Bulst.  306.  312 ;  1  Roll  125.  130 ; 
Doct.  &  St.  Di.  2,  c.  38  ;  sed  vide  Bac. 
Abr.  Bailment,  D. 

2dly.  As  to  Commodutum  or  loan, 
the  responsibility  of  the  bailee  is  much 
more  strictly  enforced  in  this  class  of 
bailments ;  and  that  with  justice,  for  the 
loan  to  him  is  for  his  own  advantage, — 
not,  as  in  the  case  of  deposit,  for  that  of 
the  bailor.  He  is,  therefore,  bound  to 
use  great  diligence  in  the  protection  of 
the  thing  bailed,  and  will  be  responsible 
even  for  slight  negligence ;  nor  must 
he  on  any  account  deviate  from  the  con- 
ditions of  the  loan,  as  in  Bringloe  v. 
Morrice,  1  iVIod.  210,  3  Salk.  271,  where 
the  loan  of  a  horse  to  the  defendant  to 
ride  was  held  not  to  warrant  him  in 
allowing  his  servants  to  do  so. 

3rdly.  Locatio  rei.  This,  as  we  have 
seen,  is  where  goods  are  lent  to  the 
bailee  for  hire.  In  such  case  Lord 
Holt  tells  us  that  the  bailee  is  bound  to 
use  the  utmost  care.  This  expression, 
as  Sir  W.  Jones  has  remarked,  appears 
too  strong,  for  it  would  place  a  hirer 
who  pays  for  the  use  of  the  goods  on  the 
same  footing  as  a  borrower;  and  indeed 
Lord  Holt  himself  qualifies  it,  by  citing, 
immediately  after,  a  passage  of  Braclon, 
in  which  the  care  required  is  described 
to  be  "  talis  qualisdiligentissimus  pater- 
familias suis  rebus  adhibet."  Sir  Wil- 
liam has,  in  an  able  criticism  upon  this 
passage,  shown  that  it  was  copied  ver- 
batim from  Justinian,  in  whose  work,  he 
further  proves  that  it  must  have  been 
used  to  signify,  not  extreme,  but  ordi- 
nary diligence.  Accordingly,  in  Dean 
V.  Keate,  3  Camp.  4,  the  diligence  re- 
quired from  the  *hirer  of  ahorse  rH:-inm 
was  such  as  a  prudent  man  ^  ^ 
would  have  exercised  towards  his  own, 
and,  therefore,  having  himself  prescrib- 
ed to  it,  instead  of  calling  in  a  veteri- 
nary surgeon,  he  was  held  responsible. 
See  the  notes  to  that  case,  and  Davy  v. 
Chamberlain,  4  Esp.  229  ;  see  also  Read- 
ing V.  Menham,  1  Moo.  &  Rob.  234; 
and  Longman  v.  Galini,  Abbot  on  Shipp. 
259,  n.,  5th  ed. 

4thly.  Vadium  or  pawn.  In  this  case 
also  the  pawnee  is  bound  to  use  ordinary 
diligence  in  the  care  and  safeguard  of 
the  pawn,  but  he  is  not  bound  to  use 


COGGS     V.     BARNARD. 


223 


more  ;  an  J  therefore,  if  it  be  lost  notwith- 
standing siicli  diligence,    ho  shall   still 
resort  to  the  pawnor  for  his  debt.     See 
Lord  Holt's  iiulgnient  in  the  text  ;  Vere 
V.Smith,!  Vent.  121;  Anon.2Salk  522. 
So,  too,  if  several  things  be  pledged  for 
the  same  debt,  and  one  be  lost  without 
default  in   the  pawnee,  the  residue  are 
liable  to  the  whole  debt.     Ratclifle  v. 
Davies,  Yel.  178  ;  Bac.  Abr.  Bailment, 
B.     If  the  pawnor  make  default  in  pay- 
ment at  the  stipulated  time,  the  pawnee 
has  a  right  to  sell   the  pledge,  and  this 
he   may  do  of  his  own   accord,  without 
any  previous  application   to  a  court  of 
equity.     See  Pothener  v.  Dawson,  Holt, 
385;   Tucker  v.   Wilson,    1    P.    Wms. 
261 ;  Lockwood  v.  Ewer,  9   Mod.  278  ; 
3  Atk.  303;  or  he  may  sue  the  pawnor 
for  his  debt,  retaining  the  pawn,  for  it  is 
a  mere   collateral  security.     Bac.  Abr. 
Bailm.  B. ;  Anon.  12  Mod.  564.     If  he 
think  proper  to  sell  ;  the  surplus  of  the 
produce,   after  satisfying  the  debt,  be- 
longs to  the  pawnor  ;  while,  on  the  other 
hand,  if  the  pawn   sell  for  less  than  the 
amount  of  the  debt,  the  deficiency  con- 
tinues chargeable  on  the  pawnor.   South 
Sea  Co.  v.  Duncombe,  2  Str.  919.  From 
all  this,  it  will  be  seen  that  a  paivn  dif- 
fers, on  the  one  hand,  from  a  lie^i,  which 
conveys  no  right   to  sell  whatever,  but 
only  a  right  to  retain  until   the  debt  in 
respect  of  which  the  lien  was  created 
has   been   satisfied ;    and,  on   the  other 
hand,  from  a  mortgage,  which  conveys 
the  entire  property  of  the  thing  mort- 
gaged to   the  mortgagee   conditionally, 
so  that  when  the  condition  is  broken  the 
property  remains  absolutely  in  the  mort- 
gagee ;   whereas  a  pawn  never  conveys 
the  general  property  to  the  pawnee,  but 
only  a   special    property    in    the    thing 
pawned;  and  the  etlect  of  a  defiuilt  in 
payment  of  the  debt  by  the  pawnor  is 
not  to  vest  the  entire   property  of  the 
thing   pledged    in    the   pawnee,  but   to 
give   him  a   power  to  dispose  of  it,  ac- 
counting for  the  surplus;  which  power, 
if  he   neglect  to  use,  the   general  pro- 
perty of  the  thing  pawned   continues  in 
the    pawnor,  who   has  a  right   at   any 
time  to  redeem  it.  Com.  Dig.  Mortgage, 
B;   Waller  v.  Smith,  5  B.  &  A.  439; 
Kemp  v.  Westbrook,  1  Ves.  278;    De- 
mandray  v.  Metcalfe,  Prec.  Cha.  420 ; 
2  Vern.  691  ;    Vanderzee  v.   Willis,  3 
Bro.  21;  Ratcliffe  v.  Davies,  Yelv.  178. 
After  the  debt  has  been  discharged  or 
tendered,    it    of   course    becomes    the 
pawnee's  duty  to  return  the  pawn.   See 


the  text ;  Isaac  v.  Clarke,  2  Bulst.  306  ; 
Anon.  2  Salk.  522;  B.  N.  P.  72.  And 
if  the  pawnor,  have,  as  he  may  do,  as- 
signed his  property  in  the  pledge,  sub- 
ject to  the  pawnee's  rights  and  special 
property,  the  assignee  will  have,  it  is 
said,  the  same  right  as  the  pawnor,  both 
in  law  and  equity  ;  Kemp  v.  Westbrook, 
1  Ves.  278;  [Franklin  v.  Neate,  13  M. 
&  W.  481 ;]  whereas  it  is  clear  that 
the  assignee  of  the  equitj'  of  redemption 
in  a  thing  mortgaged  could  have  no 
rights  at  law.  There  may,  however,  be 
a  mortgage,  properly  speaking  of  chat- 
tels, which  will  be  subject  to  the  same 
incidents  as  any  other  mortgage.  If 
the  pawnee,  after  payment  or  tender, 
insist  upon  retaining  the  goods  pledged, 
he  is  a  wrong-doer,  and  becomes  liable 
to  an  action,  and  chargeable  with  any 
damage  which  may  afterwards  happen 
to  the  pledge,  whether  with  or  without 
his  default.  See  the  text.  Lord  Holt's 
judgment;  Anon.  2  Salk.  522;  Com. 
D.  Mortg.  B. 

A  pawn  being  a  sort  of  bailment 
transfer  of  the  possession  of  the  chattel 
pledged,  is  of  the  essence  of  it;  and  if 
the  pawnee  part  with  the  possession,  he 
loses  the  benefit  of  his  security.  Ryal 
v.  Rolle,  1  Atk.  165;  approved  of  in 
Reeves  v.  Capper,  5  I3ing.  N.  C.  140, 
141.  But  if  the  pawnee,  after  the  pawn 
has  taken  place,  re-deliver  the  chattel 
to  the  pawnor  for  some  purpose  consis- 
tent with  the  continuance  of  the  con- 
tract of  pledge,  the  possession  of  it  by 
the  pawnor  is  looked  upon  as  the  posses- 
sion of  the  pawnee,  and  the  security 
remains.     Reeves  v.  Capper,  ibid. 

See,  on  the  subject  of  pawn-brokers, 
St.  39  &  40  G.  3,  c.  99,  28lh  July,  1800, 
intituled  An  act  for  belter  regulating 
the  business  of  Pawn-brokers;  and  see 
Nickesson  v.  Trotter,  3  Mee.  &l  Wei. 
130.  This  act  limits  the  interest  which 
pawn-brokers  may  take,  and  contains 
provisions  guarding  against  the  facility 
of  putting  away  stolen  goods  through 
pawn-brokers.  At  the  expiration  of  a 
year  and  a  day  the  pledges  may  be  sold, 
by  public  auction  only,  unless  the  pawnor 
give  a  notice  to  the  contrary,  in  which 
case  the  sale  must  be  postponed  for  three 
months  ;  but  if  the  pawn-broker  neglect 
to  sell,  the  pawnor  will,  as  at  common 
law,  have  a  right  to  redeem  at  any  time. 
Waller  v.  Stnith,  5  B.  &  A.  439. 

*5thly.  Locatio  operis  facien-  pjQji 
di.  In  this  case,  goods  are  en-  ^  J 
trusted  by  the  bailor  to  the  bailee,  to 


224 


SMITHS     LEADING     CASES. 


be  safely  kept,  or  to  be  carried,  or  to 
have  some  work  done   upon   tliem,  for 
hire  to  be  paid  to  the  bailee.     Such  is 
the  bailment  of  goods  to  a  warehouse- 
man or  wharfinger  to  be  taken  care  of, 
of  cloth  to  a  tailor  to  be  made  into  a  gar- 
ment, of  jewels  to  a  goldsmith  to  be  set, 
of  a  seal  to  a  stone-cutter  to  be  engrav- 
ed, &c.     In  such  cases  the  rule  is,  that 
the  bailee  is  bound  not  only  to  perform 
his  contract  with  regard  to  the  work  to 
be  done,  but  also  to  use  ordinary  dili- 
gence in  the  care  and  preservation  of 
the  property  entrusted  to  him.  Vide  Best 
V.  Yate,  1  Vent.  263.    Thus,  if  a  watch 
be  left  with  a  watch-maker  for  repairs, 
he   must  use  ordinary  care   about    its 
safeguard.  If  he  use  less,  and  the  watch 
be  lost,  he  is  chargeable  with  its  value. 
Clarke  v.  Earnshaw,  1  Gow,  30.     So  if 
cattle  be  agisted,  and  the  agister  leave 
the  gates  of  his  field  open,  he  uses  less 
than    ordinary   diligence ;    and    if    the 
cattle  stray  out  and  are  stolen  he  must 
make    good    the    loss.     Broadwater  v. 
Bolt,  Holt,  541.     If  an    uncommon   or 
unexpected  danger  arise,  he  must  use 
efforts  proportioned  to  the  emergency 
to  ward  it  of}'.     In  Leek  v.  Maestaer,  1 
Camp.  138,  the  defendant  was  the  pro- 
prietor of  a  dry-dock,  the  gates  of  which 
were  burst  open  by  an  uncommonly  liigh 
tide,  and  the  plaintiff's  ship,  which  was 
lying  there,  forced  against  another  ship 
and   injured.     It  was  sworn,  that  with 
a  sufficient  number  of  hands  the  gates 
might  have  been  shored  up  in  time  so 
as  to  bear  the  pressure  of  the  water ; 
and,  though    the   defendant  offered    to 
prove   that    they  were   in   a   perfectly 
sound  state,  Lord  Ellenborough  held  that 
it  was  his  duty  to  have  had  a  sufficient 
number  of  men  in  the  dock  to  take  mea- 
sures  of  precaution   when  the   danger 
was  approaching,  and  that  he  was  clearly 
answerable  for  the  effects  of  the  defici- 
ency.    So   a   warehouseman,  who  is  a 
bailee  of  this  description,  does  not  use 
ordinary  diligence  about  the  goods  en- 
trusted to  liun,  if  he  have  not  his  tackle 
in  proper  order  to  crane  them  into  the 
warehouse,  whereby  they  fall  and   are 
injured.     Thomas  v.  Day,  4   Esp.  262. 
But  he  is  not  liable  for  a  loss  by  a  mere 
accident,  not  resulting  from  his  negli- 
gence.    Garside  v.  Trent  Nav.  Co.  4. 
T.  R.  581 ;  see  Hyde  v.  Do.  5  T.  R. 
389  ;  In  re  Webb,  8  Taunt.  443;  Vere 
V.  Smith,  1  Vent.  121.     [See  Cairns  v. 
Robins,  8  M.  &  W.  258.]     There  are, 


however,  two  cases  in  which  the  liabi- 
lity of  bailees  fallmg  within  this  class 
is  extended  very  much  beyond  the  limit 
just  pointed  out,  viz.  where  the  bailee  is 
an  innkeeper  or  a  common  carrier.  The 
extent  of  the  innkeeper's  liability  has 
already  been  discussed  in  the  notes  to 
Calye's  case,  the  leading  authority  on 
tliat  subject.  A  few  words  shall  be  now 
devoted  to  that  of  the  carrier. 

A  common  carrier  is  a  person  who 
undertakes  to  transport   from   place  to 
place,  for  hire,  the  goods  of  such  persons 
as  think  fit  to  employ  him.     Such  is  a 
proprietor  of  wagons,   barges,  lighters, 
merchant-ships,  or  other  instruments  for 
the  public  conveyance  of  goods.     See 
the  text ;    Forward  v.  Pittard,  1  T.  R. 
27 ;  Mors  v.  Slew,  2  Lev.  69  ;  1  Vent. 
190.  238,  commented  on  in  the  text  by 
Lord  Holt;  Rich  v.  Kneeland,  Cro.  Jac. 
330;    Maving   v.    Todd,    I   Stark.   72; 
Brook  v.   Pickwick,   1   Bing.  218.      A 
person  who  conveys  passengers  only  is 
not  a  conmion  carrier.  Aston  v.  Heaven, 
2  Esp.  533 ;  Christie  v.  Griggs,  2  Camp. 
79 ;  see  Sharpe  v.  Grey,  9  Bing.  460. 
Nor  is  a  town  carman  so,  who  does  not 
ply  from  one  fixed  terminus  to  another, 
but   undertakes  casual  jobs.     Brind  v. 
Dale,  2  M.  &  Rob.  80.    A  railway  com- 
pany are  common  carriers  unless  exempt 
by  some  special  provision.     Palmer  v. 
Grand  Junction  Canal  Co.,  4  M.  &  W. 
749.     The  extraordinary  liabilities  of  a 
carrier  were  imposed  upon  him  in  con- 
sequence  of  the    public   nature  of  his 
employment,  which   rendered  his  good 
conduct  a  matter  of  importance  to  the 
whole  community.    He  is  bound  to  con- 
vey the  goods  of  any  person  offering  to 
pay   his   hire,   unless    his    carriage    be 
already  full,  or  the   risk  sought  to  be 
imposed    upon    him    extraordinary,    or 
unless  the  goods  be  of  a  sort  which  he 
cannot  convey,  or  is  not  in  the  habit  of 
conveying.    Jackson  v.  Rogers,  2  Show. 
327  ;  Riley  v.  Home,  5  Bing.  217 ;  Lane 
V.  Cotton,  1  Lord  Ray.  646;  Edwards 
v.    Sherratt,    1    East,    604 ;    Batson   v. 
Donovan,  4   B.  &  A.  32.     [Pickford  v. 
Grand  Junction  R.  Co.  8  M.  &  W.  372.] 
While  the  goods  are  in  his  custody,  he 
is  bound  to  the  utmost  care  of  them  ;  and, 
unlike   other  bailees  falling  under  the 
same   class,  he   is,  at  common  law,  re- 
sponsible for  every  injury  sustained  by 
them   occasioned   by  any  means  piQO] 
^whatever,  except  only  the  act  of  '-         •' 
God  or  the  king's  enemies.     1  Inst.  89 ; 


COGGS     V.     BARNARD. 


225 


Dale  V.  Hall,  1  Wils.  281 ;  Covington 
V.  Willan,  Gow,  115;  see  Davies  v. 
Garrett,  6  B'lng.  716.  However,  when 
the  increase ofpersonal  property  through- 
out  the  kingdom,  and  the  frequency  with 
which  articles  of  great  value  and  small 
bulk  were  transmitted  from  one  place  to 
another,  had  begun  to  render  this  degree 
of  liability  intolerably  dangerous,  car- 
riers, on  their  part,  began  to  insist  that 
their  employers  should,  in  such  cases, 
either  diminish  it,  by  entering  into  spe- 
cial contracts  to  that  effect  upon  deposit- 
ing their  goods  for  conveyance,  or  should 
pay  a  rate  of  remuneration  proportion- 
able to  the  risk  undertaken.  To  this 
end,  they  posted  up  and  distributed 
written  or  printed  notices,  to  the  effect 
that  they  would  not  be  accountable  for 
property  of  more  than  a  specified  value, 
unless  the  owner  had  insured  and  paid 
an  additional  premium  for  it.  If  this 
notice  was  not  communicated  to  the 
employer,  it  was  of  course  ineffectual. 
Kerr  v.  Willan,  6  M.  &  S.  160.  [See 
Walker  v.  Jackson,  10  M.  &  W.  161. 
171.]  But  if  it  could  be  brought  home  to 
his  knowledge,  it  was  looked  upon  as  in- 
corporated into  his  agreement  with  the 
carrier,  and  he  became  bound  by  its  con- 
tents. Mayhew  v.  Eames,  6  B.  &  C.  60]  ; 
Rowley  v.  Home,  3  Bing.  2  ;  Nicholson 
V.  Willan,  5  East,  507.  Still  the  car- 
rier, notwithstanding  his  protection  by 
the  notice,  was  bound  to  avoid  gross 
negligence ;  and  if  the  property  was 
lost  or  injured  by  such  negligence,  he 
was  responsible.  Smith  v.  Home,  2  B. 
M.  18;  Duffv.  Budd,  3  B.  &  B.  177; 
Birkett  v.  Willan,  2  B.  &.  A.  356  ;  Gar- 
nett  v.  Willan,  5  B.  &,  A.  53 ;  Sleat  v. 
Fagg,  lb.  542;  Wright  v.  Snell,  lb. 
350 ;  [VV^yld  v.  Pickford,  8  M.  &  W.  443. 
460 ;]  see  Osven  v.  Burnett,  4  Tyrwh. 
143;  [and  Hinton  v.  Dibbin,  2  Q,.  B. 
646.]  Unless,  indeed,  the  employer  had 
lulled  his  vigilance  by  an  undue  con- 
cealment of  the  nature  of  the  trust 
imposed  on  him,  for  such  conduct  would 
have  exonerated  the  carrier,  even  had 
he  given  no  notice.  Batson  v.  Donovan, 
4  B.  &  A.  21 ;  Miles  v.  Cattle,  6  Bing. 
743;  see  4  Burr.  2301;  B.  N.  P.  71. 
[See  Walker  v.  Jackson,  10  M.  &  W. 
161.  168.]  Very  many  questions,  as  was 
naturally  to  be  expected,  having  arisen 
upon  the  construction  of  these  notices, 
and  whether  they  had  come  to  the  cus- 
tomer's knowledge,  the  legislature  has 
thought  proper  to  step  in,  and  by  several 
enactments  to  regulate  the  responsibility 
Vol.  I.— 15 


of  carriers  by  land  and  water.  The  land- 
carrier's  act  is  St.  11  Geo.  4  &.  1  Will. 
4,  cap.  68,  which  enacts  that  no  common 
carrier  by  land  for  hire,  shall  be  liable 
for  loss  or  injury  to  any  gold  or  silver 
coin,  gold  or  silver  in  a  manufactured  or 
unmanufactured  state,  precious  stones, 
jewellery,  watches,  clocks,  time-pieces, 
trinkets,  bills,  bank-notes,  orders,  notes, 
«r  securities  for  payment  of  money, 
stamps,  maps,  writings,  title-deeds,  paint- 
ings, engravings,  pictures,  gold  or  silver 
plate,  or  plated  article,  glass  (see  Owen 
V.  Burnett,  4  Tyrwh.  143,)  china,  silks 
— manufactured  or  unmanufactured — 
wrought-up  or  not  wrouglit-up  with 
other  materials,  furs  (see  Mayhew  v. 
Nelson,  6  C.  &  P.  59,)  or  lace,  contain- 
ed in  any  parcel,  when  the  value  ex- 
ceeds the  sum  of  10/.,  unless  at  the  time 
of  delivery  the  value  and  nature  of  the 
article  shall  have  been  declared,  and  the 
increased  charges,  or  an  engagement  to 
pay  the  same,  accepted  by  the  person 
receiving  the  parcel.  By  sect.  2,  the 
carrier  may  demand  for  such  parcels  an 
increased  rate  of  charge,  whicii  is  to  be 
notified  by  a  notice  affixed  in  his  office, 
and  customers  are  to  be  bound  thereby, 
without  further  proof  of  the  notice  hav- 
ing come  to  their  knowledge.  Carriers 
who  omit  to  affix  the  notice  are,  by  sect. 
3,  precluded  from  the  benefit  of  this  act, 
and,  by  sect.  4,  they  can  no  longer  by  a 
notice  limit  their  responsibility  in  respect 
of  articles  not  within  the  act.  Special 
contracts,  however,  between  the  carrier 
and  his  employer  are  still  allowed,  and 
are  not  affected  by  this  statute.  By 
sect.  5,  the  act  is  not  to  protect  carriers 
from  their  liability  to  answer  for  loss 
occasioned  by  the  felonious  acts  of  their 
own  servants,  nor  is  it  to  protect  the 
servant  from  answering  for  his  own 
neglect  or  misconduct.  And  it  has  been 
held  that,  notwithstanding  this  statute, 
the  carrier  is  still  answerable  for  gross 
negligence  on  his  part,  which  has  occa- 
sioned a  loss  of  property  such  as  the  act 
directs  to  be  insured,  even  although  the 
owner  has  neglected  to  insure  it ;  for 
the  protection  given  to  the  carrier  by 
the  act  is  substituted  for  the  protection 
*which  he  formerly  derived  from  r*iAo-| 
his  own  notice,  and  the  fjrmer,  •-  -' 
therefore,  will  not  now  protect  him,  in 
a  case  in  which  the  latter  would  not 
have  been  allowed  to  do  so  in  conse- 
quence of  his  misconduct.  Owen  v. 
Burnett,  4  Tyrwh.  142.  [The  dicta, 
however,  to  this  effect  in  this  case,  are 


226 


SMITHS     LEADING     CASES. 


overruled  in  Hinton  v.  Dibbin,  2  Q.  B. 
646,  where  it  is  determined  that  under 
this  statute,  the  exemption  of  the  carrier 
from  liability  as  to  the  enumerated  arti- 
cles, where  their  value  and  nature  is 
not  declared  by  the  owner  and  they  are 
not  paid  for  according^ly,  is  absolute  and 
entire  ;  and  that  a  carrier  in  such  a  case 
is  not  liable  for  any  negligence  in  him- 
self or  his  servants.] 

With  respect  to  carriers  by  water, 
besides  the  exemptions  for  which  they 
stipulate  in  their  charter-parties  and 
bills  of  lading,  (which  latter  always  con- 
tain a  clause  discharging  them  from 
liability  for  losses  occasioned  by  "  the 
act  of  God,  the  king's  enemies,  fire,  and 
all  and  every  other  dangers  and  acci- 
dents of  the  seas,  rivers,  and  navigation, 
of  what  nature  and  kind  soever;"  the 
first  two  of  which  exemptions  they 
indeed  enjoyed  at  common  law,  and  that 
from  loss  by  fire  under  26  Geo.  3,  c.  66, 
s.  2,)  they  are  further  protected  by  the 
last-mentioned  statute  from  making  good 
loss  or  damages  to  any  gold,  silver,  dia- 
monds, watches,  jewels,  or  precious 
stones,  sustained  by  any  robbery,  embez- 
zlement, making  away  or  secreting 
thereof,  unless  the  owner  or  shipper  has, 
at  the  time  of  shipping,  declared  the 
nature  and  value  thereof  in  writing.  6 
Geo.  4,  c.  155,  s.  53,  exempts  them  from 
liability  from  damage  arising  from  the 
want  of  a  duly  qualified  pilot,  unless  in- 
curred by  their  own  refusal  or  neglect 
to  take  one  on  board  ;  and  sect.  55,  trom 
liability  for  loss  incurred  through  the 
default  or  incompetency  of  a  licensed 
pilot.  Where  their  common  law  liability 
remains,  it  is  much  narrowed  by  the 
following  acts,  viz.  7  Geo.  2,  c.  15,  which 
exempts  them  from  making  good  losses 
incurred  by  the  misconduct  of  the  master 
and  mariners,  without  their  privity,  to  a 
greater  extent  than  the  value  of  the 
siiip  and  freight  (see  Sutton  v.  Mitchell, 
1  T.  R.  18) ;  26  Geo.  3,  cap.  66,  sec.  1, 
which  extends  the  above  enactment  to 
all  cases  of  loss  by  robbery  by  whom- 
soever committed,  and  53  Geo.  3,  cap. 
159,  which  extends  it  to  all  cases  of  loss 
occasioned  without  their  default  or  pri- 
vity ;  but  this  act  does  not  extend  to 
vessels  used  solely  in  rivers  or  inland 
navigations,  or  to  any  ship  not  duly 
registered  according  to  law  ;  nor  do  any 
of  the  acts  extend  to  lighters  and  gab- 
berts.  Hunter  v.  M'Gown,  1  Bligh,  573. 
It  should  also  be  observed  that  the  bene- 
fit of  the  three  last-mentioned  acts  ex- 


tends to  owners  only,  not  to  masters,  and 
that  the  last  contains  an  express  clause 
against  relieving  the  master,  though  he 
may  happen  also  to  be  a  part-owner. 
See  Wilson  v.  Dickson,  2  B.  &  A.  2. 

Where  goods  consigned  to  a  vendee 
are  lost  through  the  default  of  the  car- 
rier, the  consignee  is  the  proper  person 
to  sue,  [if  the  property  in  the  goods  has 
passed  to  him,]  for  the  consignor  was  his 
asfent  to  retain  the  carrier.  Dawes  v. 
Peck,  8  T.  R.  330  ;  Dutton  v.  Solomon- 
son,  3  B.  &.  P.  582  ;  King  v.  Meredith, 
2  Camp.  639;  Brown  v.  Hodgson,  lb.  36. 
But  it  is  otherwise  where  [the  property 
remains  in  the  consignor ;  Coats  v.  Chap- 
lin, 3  Q.  B.  483  ;  as  where]  the  goods 
were  sent  merely  for  approval,  Swain  v. 
Shepherd,  1  M.  &  Rob.  224,  or  the  con- 
signee is  the  agent  of  the  consignor. 
Sargent  v.  Morris,  3  B.  &  A.  277,  or 
[where]  the  carrier  has  contracted  to  be 
liable  to  the  consignor  in  consideration 
of  the  lalter's  becoming  responsible  for 
the  price  of  the  carriage.  Moore  v. 
Wilson,  1  T.  R.  659;  Davis  v.  James, 
5  Burr.  2680.  See  Freeman  v.  Birch, 
1  Nev.  &  M.  420.  [S.  C.  3  Q.  B. 
492.] 

In  the  case  of  an  action  brought 
against  a  carrier,  it  is  sufficient  prima 
facie  evidence  of  a  loss  by  his  negligence 
to  show  that  the  goods  never  reached 
the  consignee.  [See  Muschamp  v.  Lan- 
caster Ra^ilway  Co.,  8  M.  &  W.  421.] 
But  where  they  are  bailed  to  a  booking- 
office  keeper  to  be  delivered  to  a  carrier, 
the  plaintiff  must  show  by  direct  evi- 
dence that  they  were  not  delivered  to 
one.  Gilbart  v.  Dale,  5  A.  &  E.  .540  ; 
Griflith  V.  Lee,  1  T.  R.  659.  With 
regard  to  the  mode  of  declaring  against 
a  carrier,  formerly,  the  'practice  was  to 
set  out  the  custom  of  the  realm  ;  that 
has  been  discontinued,  because  the  cus- 
tom of  the  realm  being  the  law  of  the 
realm,  the  courts  take  notice  of  it.  After- 
wards the  practice  became  to  state  the 
defendants  to  be  common  carriers  for 
hire,  totidem  verbis  ;  that  was  however 
departed  from  to  some  extent  in  Brother- 
ton  V.  Wood,  3  B.  &  B.  58,  and  still 
more  in  Pozzi  v.  Shipton,  8  A.  &  £.  974, 
where  a  declaration  stating-  that  the 
plaintiff  delivered  and  that  the  defen- 
dant accepted  the  goods  in  question,  to 
be  carried  for  reward  from  A.  toB.,  was 
held  sufficient  upon  the  custom  of  the 
realm  to  warrant  a  verdict  against  one 
of  two  defendants,  upon  evidence  of  his 
being  a  common  carrier.      The  court, 


COGGS    V.     BARNARD. 


227 


however,  doubted  whether  it  would  have 
been  eood  on  special  demurrer.  [See 
Wyld  V.  Picktbrd,  8  M.    &   VV.  443. 

459.] 

The  sixth  and  last  class  of  bailments 
is  (according-  to  Lord  Holt)  mandatum, 
or  a  delivery  of  goods  to  somebody  who 
is  to  carry  them,  or  do  something  about 
them,  gratis.  And  this  niiglit  have  been 
classed  under  the  same  head  with  dcpo- 
situm.  For  as  the  keeping,  carrying, 
and  working  upon  goods  for  hire  are 
all  included,  both  by  Lord  Holt,  and  Sir 
W.  Jones,  under  the  same  head,  there 
seems  no  good  reason  why  tiie  keeping, 
carrying,  and  working  upon  them 
gratuitously,  should  not  have  been  so 
likewise.  Certain  it  is,  tliat  the  liabili- 
ties of  the  depositary  and  of  the  manda- 
tary are  precisely  the  same  ;  both  (hi 
the  absence,  at  lea^t,  of  a  contract  in 
special  terms)  are  bound  to  slight  dili- 
gence, and  to  slight  diligence  only,  and 
liable  for  nothing  short  oi"  gross  negli- 
gence, the  reason  in  each  being  the 
same,  namely,  that  neither  is  to  receive 
any  reward  tor  his  services.  Accord- 
ingly, whenever  the  extent  of  a  manda- 
tary's liability  is  discussed  we  find  the 
cases  respecting  that  of  depositaries  cit- 
ed, and  relied  upon,  and  so  vice  versa. 
The  case  of  Beauchamp  v,  Powley,  1  M, 


&  Rob.  38  ;  Sheills  v.  Blackburne,  1  H. 
BL  158;  and  Dartnall  v.  Howard,  4  B. 
&  C.  345,  the  facts  of  which  are  respec- 
lively  stated  at  the  commencement  of 
this  note,  were  decisions  *on  the  pio4] 
responsibility  of  mandataries,  and 
from  those,  as  well  as  from  the  general 
principle,  it  appears  that  such  bailees 
are  liable  for  gross  negligence,  and  tor 
that  only. 

From  the  above  cursory  view  ot  the 
law  of  bailments,  it  will  be  seen  that, 
besides  the  six  classes,  enumerated  by 
Lord  Holt,  bailees  may  be  distributed 
into  three  general  classes  varying  from 
one  another  in  their  degrees  of  respon- 
sibility.  The Jirsl  of  tliese  is,  where  the 
bailment  is  for  the  benefit  of  the  bailor 
alone  :  this  includes  the  cases  o'i  manda- 
taries and  deposits,  and  in  this  the 
bailee  is  liable  only  for  gross  negli- 
gence. Tlie  second  is,  where  the  bail- 
ment is  for  the  benefit  of  the  bailee 
alone  ;  this  comprises  loans,  and  in  this 
class  the  bailee  is  bound  to  the  very 
strictest  diligence.  The  third  is,  where 
the  bailment  is  for  the  benefit  both  ot 
bailor  and  bailee:  this  includes  locatio 
rei  vadium,  and  locatio  opens,  and  m 
this  class  an  ordinary  and  average 
decree  of  diligence  is  sufficient  to 
exempt  the  bailee  from  responsibility. 


In  the  common  law,  the  only  sure  way  of  ascertaining  legal  obligations, 
and  the  most  convenient  method  of  arranging  them,  is  by  considering  the 
remedies  by  which  the  obligations  are  enforced.  Rights  and  duties,  so 
called,  existing  beyond  the  limits  of  legal  remedy,  may  be  matters  of  enlight- 
ened  curiosity,  and  moral  or  metaphysical  speculation,  but  are  no  part  ol  the 

common  law.  , 

Most  of  the  classes  of  persons  mentioned  in  the  preceding  case  and  note, 
may  be  comprehended  under  the  distinction  of  ordinary  paid  agents  and 
unpaid  agents:  and  as  the  actions  by  which  their  liability  is  enforced,  are 
case,  trover,  and  assumpsit,  there  can  be  no  difficulty  m  determimng  the 
o-round  and  extent  of  their  liabilities. 

""  But,  besides  these,  there  are  at  least  three  classes  of  persons,  upon  whom 
the  common  law  has  imposed  a  peculiar  responsibility  ;  and  has  allowed  a 
special  writ  for  the  enforcement  of  it.  It  differs  from  the  liability  of  the  two 
first-mentioned  classes,  in  this  ;  that,  whereas  they  are  liable  only  for  negli- 
gence, or  want  of  diligence  :  this  class  is  made  responsible  as  a  kind  ot 
insurers,  for  damage  arising  wholly  by  the  act  of  others  or  by  inevitable 
accident ;  by  any  cause,  in  short,  except  the  act  of  God.  Such  is  the 
liability  at  common  law,  of  a  master  of  a  house,  for  damage  done  to  his 
neighbour's  property,  by  a  fire  arising  in  his  house,  though  occasioned  by 


228  smith's  leading   cases. 

the  negligence  of  others,  if  they  have  entered  the  house  with  his  consent  or 
knowledge  :  of  an  innkeeper,  for  any  loss  or  injury  to  goods  of  travellers 
placed  infra  hospitum  ;  and  of  common  carriers.  The  liability  of  these  three 
appears  to  rest  on  the  same  principle,  and  have  the  same  extent ;  being, 
within  the  range  of  its  action,  a  responsibility  for  all  damage  arising  by 
human  means  :  and  it  is  enforced  by  the  same  kind  of  special  writ,  upon 
the  law  and  custom  of  the  realm  of  England.  It  appears  to  be  a  peculiar, 
and  native  institution  of  the  English  people  ;  very  similar  in  its  policy  to 
the  law  which  made  the  hundred  liable  for  robberies,  &c. 

The  common-law  responsibility  of  a  master  of  a  house  is  understood  to  be 
abolished  by  statute  6  Ann.  c.  31,  s.  6,  10  Ann.  c.  14,  s.  1,  which  provides, 
that  no  action  shall  be  maintained  against  any  person  in  Avhose  house  or 
chamber  any  fire  shall  accidentally  begin  :  the  old  cases,  however,  especially 
2  Hen.  IV.  18,  pi.  6,  are  worth  reading,  on  account  of  the  close  analogy  to 
the  cases  of  innkeepers  and  carriers :  and  the  case  of  Anonymous,  Cro.  El. 
10,  to  illustrate  the  difference  between  a  special  action  on  the  custom,  and 
action  on  the  case  for  negligence. 

The  whole  subject  of  the  preceding  case,  and  of  Cayle's  may,  therefore 
be  considered  under  the  following  heads  : 

1.  Innkeepers. 

2.  Common  carriers. 

3.  Ordinary  paid  agents  ;  and  unpaid  agents. 

1.  Innkeepers. — In  Mason  et  al.  v.  Thompson,  9  Pickering,  280,  which 
was  case  against  an  innkeeper  on  the  custom  of  the  land,  a  horse,  chaise  and 
harness,  owned  by  plaintiffs,  and  hired  by  a  third  person,  to  be  driven  to  a 
neighbouring  city,  had  been  sent  by  that  person  to  the  inn,  while  the  per- 
son herself  lodged  elsewhere  ;  and  the  articles  sent  to  the  inn  were  lost  or 
stolen  :  and  the  plaintiffs  recovered.  The  court,  per  Wilde,  J.,  said,  "Inn- 
keepers, as  well  as  common  carriers,  are  regarded  as  insurers  of  the  pro- 
perty committed  to  their  care,  and  are  bound  to  make  restitution  for  any 
iujury  or  loss  not  caused  by  the  act  of  God,  or  the  common  enemy,  or  the 
neglect  or  fault  of  the  owner  of  the  property  ;"  "  the  law  rests  on  the  same 
principles  of  policy  here,  as  it  does  in  England  and  other  countries,  and  it 
is  wise  and  reasonable  :"  and  it  was  held,  that  the  plaintiffs,  though  not 
themselves  guests  or  bailors,  could  maintain  the  action,  because  they  were 
owners  of  the  property,  and  it  was  delivered  by  their  servant ;  (see  dictum 
S.  P.  Simpson  and  another  v.  Hand  and  another,  9  Wharton,  311.  322;) 
that  the  compensation  paid  for  the  horse,  extended  the  innkeeper's  responsi- 
bility to  the  chaise  and  harness ;  and  that  it  was  no  objection  that  neither 
they  nor  their  servant  lodged  at  the  inn; — "It  is  clearly  settled,"  says  the 
court,  "that  to  constitute  a  guest,  in  legal  contemplation,  it  is  not  essential 
that  he  should  be  a  lodger,  or  have  any  refreshment  at  the  inn.  If  he  leaves 
his  horse  there,  the  innkeeper  is  chargeable,  on  account  of  the  benefit  he  is 
to  receive  for  the  keeping  of  the  horse.  Lord  Holt,  held  a  different  opin- 
ion in  the  case  of  York  v.  Greenaugh,  2  Ld.  Raym.  866  ;  but  the  opinion  of 
the  majority  of  the  court  has  ever  since  been  considered  as  well  settled 
law."  In  Peet  v.  M'Graw,  25  Wendell,  653,  there  is  a  dictum  by  Nelson, 
C.  J.,  to  the  same  effect  Avith  the  last  point  in  the  case  of  Mason  v.  Thomp- 
son ;  he  says  it  has  been  repeatedly  held,  that  the  person  need  not  be  the 
guest  of  the  innkeeper,  but  may  put  up  at  a  different  place,  and  yet  the 


COGGS     V.     BARNARD.  229 

innkeeper  is  liable  for  the  loss  of  horses  placed  at  his  inn :  but  in  Grinnell 
V.  Cook,  3  Hill's  N.  Y.  486,  this  point  is  examined  by  Bronson,  J.,  and 
the  old  cases  carefully  investigated  ;  he  denies  the  case  of  Mason  v.  Thomp- 
son, as  to  this  particular,  and  expresses  a  very  strong  opinion,  that  the 
person  must  be  actually  a  guest  at  the  time.  This,  however,  is  not  the 
point  expressly  decided  in  CTi-innell  v.  Cook,  which  related  to  the  lien  of 
the  innkeeper:  the  person  in  that  case  was  not  a  traveller,  but  a  resident, 
who  left  his  horses  at  the  inn-stables  :  it  was  decided,  that  the  innkeeper's 
liability  and  lien  are  co-existent;  and,  as  in  this  case  the  liability  did  not 
exist,  he  had  no  lien. 

In  Sneider  v.  Geiss,  1  Yeates,  34,  the  plaintiff"  had  delivered  a  bag  of 
money  to  the  step-daughter  of  the  defendant,  an  innkeeper,  who  carried  it  to 
the  defendant's  bed-room  ;  the  plaintiff"  was  on  terms  of  particular  intimacy 
with  tlie  step-daughter,  having  courted  her  in  marriage,  and  had  several 
times  before  given  her  parcels  of  money  to  be  taken  care  of  for  him  :  the 
court  said ;  "  On  principles  of  law,  an  innkeeper  is  liable  for  whatever  is 
deposited  in  his  house,  and  this,  on  grounds  of  the  soundest  policy  and 
public  convenience  ;"  but  that  the  true  point  of  the  case  here  was,  whether 
the  plaintiftMiad  not  confided  his  money  to  the  personal  trust  and  care  of  the 
woman,  and  did  not  rest  on  the  security  of  the  inn ;  and  on  that  question  of 
fact,  the  jury  found  for  the  defendant.  In  Piper  v.  Manny,  21  Wendell, 
283,  a  similar  principle  is  decided,  and  it  is  said,  the  test  of  liability  is,  not 
the  place  where  the  goods  are  deposited,  but  "  whether  they  are  in  the  cus- 
tody of  the  innkeeper,  or  at  the  risk  of  the  guest :"  and  accordingly,  whea 
the  plaintift^'s  servant  had,  by  direction  of  the  hostler,  placed  his  goods  in  an 
open  unenclosed  space,  upon  an  assurance  that  it  was  a  safe  place,  the  inn- 
keeper was  held  liable, — In  Clute  v.  Wiggins,  14  Johnson,  175,  it  was 
decided,  that  an  innkeeper  is  bound  to  protect  the  property  of  those  whom 
he  receives  as  guests  ;  and  having  received  the  plaintiff",  a  wagoner,  with  his 
loaded  sleigh,  and  put  the  latter  into  a  wagon-house  of  the  plaintiff",  where 
it  had  been  usual  for  the  defendant  to  receive  loads  of  that  description,  and 
the  doors  of  the  wagon-house  having  been  broken  open,  and  the  property 
stolen,  the  innkeeper  was  held  liable. — In  Hawley  v.  Smith,  25  Wendell, 
642,  it  was  decided,  on  the  authority  of  Cayle's  case,  that  if  sheep  of  one 
lodging  at  an  inn,  are  put  to  pasture  under  the  direction  of  the  guest,  and 
are  there  poisoned  by  eating  laurel,  the  innkeeper  is  not  liable,  but  only  for 
negligence  :  the  statement  says  only  that  they  were  put  into  the  field  with 
the  knowledge  of  the  owner ;  and  probably  the  true  ground  of  the  decision 
is,  that  a  flock  of  sheep  is  not  comprehended  among  the  "bona  et  catalla 
transeuntis,"  which  an  innkeeper  is  bound  to  receive  and  protect. 

2.  Common  Carriers. 

Definition  of  common  carriers.  A  common  carrier  is  usually  defined, 
one  who  undertakes  for  hire  to  carry  for  any  who  choose  to  employ  him. 
The  subject  is  examined  by  Gibsov,  C.  J.,  in  Gordon  v.  Hutchinson,  1 
Watts  and  Sergeant,  285,  and  the  rule  deduced  is,  that  "a  wagoner,  who 
carries  goods  for  hire,  is  a  common  carrier,  whether  transportation  be  his 
principal  and  direct  business,  or  an  occasional  and  incidental  employment." 
In  Craig  v.  Childress,  Peck's  Tennessee,  270,  271,  the  rule  laid  down  and 
approved  of  in  Turney  v.  Wilson,  7  Yerger,  340.  342,  is,  that  "one  who 


230  smith's   leading   cases. 

undertakes  for  a  reward  to  convey  produce  or  goods  of  any  sort,  from  one 
place  upon  the  river  to  another,  becomes  thereby  liable  as  a  common  car- 
rier:" and  in  Moses  ei  al.  v.  Norris,  4  New  Hampshire,  304,  it  was  held 
to  be  well  settled  that  "  all  persons  carrying  goods  for  hire,  come  under  the 
denomination  of  common  carriers."  It  is  reasonable,  and  seems  to  be  settled, 
that  one  who  undertakes,  though  it  be  only  pro  hac  vice,  to  act  as  a  common 
carrier,  that  is,  to  carry  for  hire  without  a  special  contract,  thereby  incurs 
the  responsibility  of  a  common  carrier.  Ship-owners,  carrying  goods  on 
rivers,  lakes,  or  the  high  seas,  either  to  foreign  or  domestic  ports,  are  com- 
mon carriers,  with  all  the  duties  and  responsibilities  which  belong  to  car- 
riers by  land.  Elliott  &  Stewart  v.  Rossell  &  Lewis,  10  Johnson,  1  ;  Kemp 
&  Billing  V.  Coughtry  and  others,  11  id.  107  ;  M'Arlhur  &  Hurlbert  v. 
Sears,  21  Wendell,  190,  over-ruling  whatever  was  contra  in  Aymar  v. 
Asior,  6  Covven,  266  ;  Crosby  v.  Fitch,  12  Connecticut,  410  ;  Hastings  et 
al.  v.  Pepper,  11  Pickering,  41:  &c.  &c.  What  variation  the  bills  of 
lading  may  introduce,  see  infra.  In  relation  to  passengers,  stage-owners 
and  steamboat  and  rail-road  companies,  do  not  incur  the  liability  of  com- 
mon carriers,  and  are  responsible  onlj'-  for  negligence  in  conducting  the 
journey,  or  in  providing  the  means  of  transportation  ;  Boyce  v.  Ander- 
son, 2  Peters,  150;  Stokes  v.  Salstonstall,  13  id.  181  ;  and  with  regard  to 
their  liability  for  defects  in  the  means  of  conveyance,  such  as  coaches,  har- 
ness, &c.,  it  has  lately  been  decided,  that  they  are  responsible  for  the 
consequences  to  the  passengers,  of  all  defects  which  might  have  been 
discovered  and  remedied  upon  the  most  thorough  and  careful  exam- 
ination of  the  vehicle,  but  not  for  accidents  happening  from  an  internal 
and  hidden  defect,  which  a  thorough  and  careful  examination  could  not 
disclose,  and  which  could  not  be  guarded  against  by  the  exercise  of  a 
sound  judgment,  and  the  most  vigilant  oversight;  Ingalls  v.  Bills  & 
others,  9  Metcalf,  1  ;  but  of  the  baggage  of  passengers,  they  are  common 
carriers,  the  compensation  for  its  conveyance  being  in  law  included  in 
the  passage-money  paid  by  the  traveller  ;  Orange  County  Bank  v.  Brown, 
9  Wendell,  85  ;  Camden  &c.  Company  v.  Burke,  13  id.  611  ;  Hollister 
V.  Nowlen,  19  id.  235  ;  Cole  v.  Goodwin,  id.  251 ;  Bennett  v.  Button,  10 
New  Hampshire,  481.  486;  hut  unless  notice  is  given,  and  an  extra  price 
paid,  where  articles  of  unusual  character  and  value  are  carried,  as  in  Cam- 
den &c.  Company  v.  Burke,  the  implied  liability  for  the  safe  carriage  of 
baggage,  created  by  the  principal  contract  in  relation  to  the  passenger,  will  not 
extend  beyond  what  is  strictly  and  fairly  baggage,  that  is,  such  articles  as 
are  usually  carried  by  travellers  for  their  personal  accommodation  and  use 
in  the  journey,  and  will  not  include  money  or  merchandise  carried  in 
trunks  ;  Orange  County  Bank  v.  Brown  ;  Pardee  v.  Drew,  25  Wendell, 
459  ;  Hawkins  v.  Hoftman,  6  Hill,  586;  see  Bingham  v.  Rogers,  6  Watts 
&  Sergeant,  495.  The  responsibility  of  such  persons  as  common  carriers, 
attaches  as  soon  as  the  baggage  is  delivered  to  the  agent  or  conductor,  and 
taken  into  keeping  by  him,  though  not  intended  to  start  till  the  next  convey- 
ance ;  Camden,  &c.  v.  Belknap,  21  Wendell,  355;  and  mere  arrival  at  the 
place  of  stopping,  does  not  discharge  the  steamboat  owner,  but  he  con- 
tinues liable  as  carrier,  till  the  usual  time  of  delivery,  and  is  liable  if  he 
deliver  the  baggage  to  the  wrong  person,  upon  a  forged  order;  Powell 
and  others  v.  Myers,  26  Wendell,  591,  in  the  Court  of  Errors  :  See  also 
Logan  V.  The  Pontchartrain  Rail  Road  Company,  11  Robinson's  Louisiana, 


COGGS     V.    BARNARD.  231 

24 Steamboat  owners,  undertaking  as  a  business  to  tow  other  boats,  in 

possession  of  which  tiie  master  and  hands  remain,  are  not  common  carriers, 
but  liable  only  as  paid  agents  for  ordinary  negligence.  Alexander  and 
others  v.  Green  and  others,  3  Hill's  N.  Y.  10.  Ferrymen  are  common 
carriers  ;  Rutherford  xM'Gowen,  1  Nott  &  M'Cord,  17  ;  Cook  v.  Gourdin, 
id.  19  ;  Pomeroy  v.  Donaldson,  5  Missouri,  36.  In  Dwight  etal.  v.  Brew- 
ster et  al.,  4  Pickering,  50,  a  common  carrier  is  defined,  "One  who  under- 
takes for  hire  or  reward,  to  transport  the  goods  of  such  as  choose  to  employ 
him  from  place  to  place  :"  and  it  was  there  held,  in  the  case  of  a  stage- 
coach, whose  principal  business  was  to  carry  the  mail  and  passengers,  that 
the  practice  of  taking  parcels  for  hire  to  be  conve)red  in  the  stage-coach, 
constituted  the  proprietors  common  carriers:  and  that  the  notice  "  all  bag- 
gage at  the  risk  of  the  owners,"  related  only  to  the  baggage  of  passengers, 
and  not  parcels:  and  the  same  points  are  decided  in  Beckman  &  Johnson 
V.  Shouse,  5  Rawle,  179  : — In  Robertson  &  Co.  v.  Kennedy,  2  Dana,  431, 
where  the  same  definition  is  given,  it  was  held,  that  "Draymen,  cartmen, 
and  porters,  who  undertake  to  carry  goods  for  hire,  as  a  common  employ- 
ment, from  one  part  of  a  town  to  another,  come  within  the  definition."  A 
person  may  be  a  common  carrier  of  money,  as  well  as  of  other  property  : 
Kemp  &  Billings  v.  Coughtry  and  others,  11  Johnson,  107  ;  S.  P.  Har- 
rington and  others  v.  M'Shane,  2  Watts,  443 ;  and  Emery  v.  Hersey,  4 
Greenleaf,  407. 

Where  the  business  undertaken  by  the  proprietors  of  a  conveyance,  is 
not  clearly  defined  and  known,  the  question  often  arises  as  to  the  liability  of 
the  proprietors,  for  articles  delivered  to  the  agent  who  conducts  the  convey- 
ance ;  the  stage-driver,  for  instance,  or  steamboat  captain.  This  is  not  a 
question  in  the  law  of  common  carriers  :  but  it  is  a  question  obviously 
belonging  wholly  to  the  law  of  agency.  If  there  had  been  no  actual  autho- 
rity given  to  the  conductor  of  the  conveyance,  and  yet  the  circumstances 
are  such  as  to  create  a  general  agency  as  to  the  kind  of  carrying  in  question, 
the  proprietors  will  be  liable,  as  in  Dwight  et  al.  v.  Brewster  etal.  :  on  the 
other  hand,  if  the  proprietor  of  a  vehicle,  who  is  not,  though  he  formerly 
may  have  been,  in  the  business  of  a  common  carrier,  send  his  servant  with 
it,  on  a  special  journey,  with  express  orders  not  to  carry  for  others,  he,  the 
proprietor,  is  not  liable.  Satterlee  and  others  v.  Groat,  1  Wendell,  172.  The 
case  of  Aliens  v.  Sewalland  others,  2  Wendell,  327,  S.  C.  6,  id.  335,  turned 
in  fact  wholly  upon  the  question  of  agency,  or  no  agency  ;  and  a  majority 
of  the  Court  of  Errors  were  finally  of  opinion,  that,  under  the  special  facts 
of  the  case,  the  parcel  had  been  confided  to  the  personal  trust  and  care  of 
the  captain,  and  not  to  him  as  agent  and  representative  of  the  proprietors, 
and  that,  therefore,  the  latter  were  not  liable.  The  same  principles,  of 
making  the  liability  of  the  ship-owner  for  the  acts  of  the  master,  turn  on 
the  general  law  of  agency,  are  acted  on  in  Walter  v.  Brewer,  11  Mass. 
99  ;  see  also  Taylor  v.  Wells,  3  Watts,  65. 

The  liability  of  a  carrier.  A  common  carrier  is  absolutely  liable  for  the 
safety  of  the  goods  ;  and  is  responsible  for  injuries  or  losses  arising  from  the 
acts  of  others,  without  any  neglect  or  fault  on  his  part:  the  exceptions, 
according  to  the  usual  language,  are,  "the  acts  of  God,  the  public  enemies, 
or  the  fault  of  the  party  complaining."  Dusar  v.  Murgatroyd,  1  Washing- 
ton C,  C.  R.  13,   17. 

What  precisely  is  meant  by  the  technical  expression  Act  of  God,  hag 


232  smith's  leading  cases. 

been  a  point  of  some  little  difficulty.  I  apprehend  that  the  notion  of  excep- 
tion is,  those  losses  that  are  occasioned  exclusively  by  the  violence  of 
nature  ;  by  that  kind  of  force  of  the  elements,  which  human  ability  could 
not  have  foreseen  or  prevented  :  such  as  lightning,  tornadoes,  sudden 
squalls  of  wind,  &c.  If,  however,  it  does  not  necessarily  mean  only  the 
violence  of  nature,  it  certainly  is  restricted  to  the  act  of  nature,  and  implies 
the  entire  exclusion  of  all  human  agency,  whether  of  the  carriers  or  of 
third  persons.  This  principle  is  settled  in  M'Arthur  &  Hurlbert  v.  Sears, 
21  Wendell  190  ;  a  highly  interesting  and  important  case,  to  which  the 
reader  is  specially  referred :  it  is  there  said,  "  No  matter  what  degree  of 
prudence  may  be  exercised  by  the  carrier  and  his  servants  ;  although  the 
delusion  by  which  it  is  baffled,  or  the  force  by  which  it  is  overcome  be 
inevitable  ;  yet  if  it  be  the  result  of  human  means,  the  carrier  is  responsi- 
ble ;"  p.  196.  All  the  cases  appear  to  agree  in  requiring  this  entire  exclu- 
sion of  human  agency,  from  the  cause  of  the  injury  or  loss.  In  Backhouse 
V.  Sneed,  1  Murphy,  173,  it  is  held  that,  "  all  accidents  which  can  occur 
by  the  intervention  of  human  means,  however  irresistible  they  may  be,  the 
carrier  is  considered  as  insuring  against."  In  Ewart  v.  Street,  2  Bailey, 
157,  it  is  held,  that  to  come  within  the  exception,  the  loss  must  result  not 
from  human  agency,  but  immediately  and  directly,  and  not  consequentially, 
from  the  act  of  God;  and  in  Smyrl  v.  Niolon,  id.  421,  it  is  said,  that  if  a 
freshet  have  so  disturbed  and  changed  the  regular  navigation  of  the  river, 
that  a  snag  has  been  lodged  in  the  usual  channel,  and  a  vessel  descending 
the  usual  channel  is  lost  upon  this  snag,  which  was  not  before  known  to  be 
there,  this  is  a  loss  by  the  act  of  God  ;  but  it  seems  to  be  very  questionable 
whether  such  a  loss  is  not  too  remote  a  consequence  of  the  act  of  God,  and 
whether  the  navigator  of  a  river,  whose  channel  is  liable  to  be  so  interrupted, 
is  not  bound  to  take  notice  of  the  probable  results  of  a  freshet,  and  to  be 
responsible  for  what  is  in  fact,  an  ordinary  peril  of  the  kind  of  navigation  he 
has  undertaken.  It  is  true  that  the  case  of  Smyrl  v.  Niolon  appears  to  be 
confirmed  in  Faulkner  &  Cams  v.  Wright,  Coker  &  Tuttle,  Rice,  108. 
The  case  of  Williams  and  others  v.  Grant  and  others,  1  Connecticut,  487, 
goes  still  farther  than  that  of  Smyrl  v.  Niolon,  for  it  is  said  there  that  striking 
upon  a  rock,  in  the  sea,  not  generally  known  to  navigators,  and  actually  not 
known  to  the  master  of  the  ship,  is  the  act  of  God  :  but  this  seems  to  be 
giving  rather  a  Mahometan  extension  to  that  phrase  ;  and  perhaps  both  of 
these  cases  are  liable  to  the  remark  of  confounding  the  exception  of  the  act 
of  God,  with  the  exception  of  perils  of  the  "  navigation,"  in  bills  of  lading  : 
— between  which  there  is  a  settled  distinction,  which  may  here  be  noted. 
While  it  is  universally  agreed  that  the  liability  of  carriers  by  water,  is,  at 
common  law,  and  in  the  absence  of  express  contract,  identical  with  that  of 
carriers  by  land,  it  seems  to  be  admitted  by  the  best  authorities,  that  the  bill 
of  lading  may,  in  navigation  by  water,  introduce  exceptions  not  existing  by 
common  law  ;  see  Elliott  v.  Rossell,  10  Johnson,  1.9:  and  M'Arthur  & 
Hurlbert  v.  Sears  :  and  this  seems  to  be  the  point  asserted  in  Ay  mar  v. 
Astor.  This  exception  of  "  the  perils  of  the  sea  or  of  the  river,"  has 
received  a  fixed  construction,  narrow  enough,  yet  somewhat  wider  than 
'« the  act  of  God."  In  Johnson  v.  Friar,  4  Yerger,  48,  it  is  decided  that 
the  expression  «'  dangers  of  the  river  excepted,"  in  bills  of  lading,  means 
only  such  as  no  human  skill  or  foresight  could  have  guarded  against ;  and 


COGGS     V.     BARNARD.  233 

in  Gordon  v.  Buchanan,  5  Yerger,  73.  82,  the  distinction  is  expressly 
taken  ;  the  act  of  God,  it  is  said,  "means  disasters  with  which  the  agency 
of  man  has  nothing  to  do,  such  as  h'ghtning,  tempests,  and  the  hke  ;" 
"  the  perils  of  the  river,"  includes  something  more  ;  "  Many  disasters 
which  would  not  come  within  the  definition  of  the  act  of  God,  would  fall 
within  the  exception  in  this  receipt.  Such,  for  instance,  as  losses  occasioned 
by  hidden  obstructions  in  the  river  newly  placed  there,  and  of  a  character 
that  human  skill  and  foresight  could  not  have  discovered  and  avoided." 
Turney  v.  Wilson,  7  Yerger,  340,  confirms  these  cases.  In  Williams  v. 
Branson,  1  Murphy,  417,  it  is  held  that  this  exception,  in  the  bill  of 
lading,  narrows  the  common-law  liability:  that,  "dangers  of  the  river," 
"signify  the  natural  accidents  incident  to  the  navigation,  not  such  as 
might  be  avoided  by  the  exercise  of  that  discretion  and  foresight  which  are 
expected  from  persons  in  such  employment  ;"  and  that  to  ascertain  whether 
the  loss  were  by  a  "  peril  of  the  sea,"  it  must  be  inquired  whether  the  acci- 
dent arose  through  want  of  proper  foresight  and  prudence.  In  Marsh  &  How- 
ren  v.  Blithe,  1  Nott  &  M'Cord,  170,  the  point  is  the  same  ;  the  meaning 
of  "the  act  of  God"  was  not  in  question  ;  the  point  decided,  was  that  to 
determine  whether  the  cause  of  the  loss  was  "a  peril  of  the  sea,"  the 
existence  or  non-existence  of  negligence  was  to  be  tried  by  the  jury:  and 
see  S.  P.  Humphreys  v.  Reed,  6  Wharton,  435.  442.  444;  Whitesides 
v.  Russell,  8  Watts  &  Sergeant,  44,  49.  In  Jones  et  al.  v.  Pitcher  &  Co.,  3 
Stewart  &  Porter,  136.  171,  &c.  ;  confirmed  4  id.  382,  there  is  a  rambling 
discussion  as  to  the  meaning  of  "  act  of  God"  and  "  perils  of  the  river,"  to 
the  same  effect.  The  case  of  Williams  and  others  v.  Grant  and  others,  1 
Connecticut,  487,  is  an  author  it y^Vi?,  an  adjudged  case,  only  as  to  the  mean. 
ing  of  "  the  perils  of  the  sea  :"  for  in  that  case  there  was  a  bill  of  lading, 
containing  that  exception  :  the  court  however  supposed  the  two  expressions 
to  have  the  same  meaning,  and  define  the  act  of  God  to  mean  "  all  misfor- 
fortunes  and  accidents  arising  from  inevitable  necessity,  which  human 
prudence  could  not  foresee  and  prevent ;"  but  this  opinion  that  the  two 
phrases  are  the  same,  is  denied  in  M'Arthur  &  Hurlburt  v.  Sears.  There  is 
one  other  case  which  should  be  referred  to,  which,  though  it  does  not  carry 
the  meaning  of  an  "  act  of  God,"  beyond  the  meaning  of  "an  act  of 
nature,"  yet  militates  against  its  meaning  a  direct  and  violent  act  of  nature  : 
the  case  is  that  of  Colt  &  Colt  v.  M'Mechen,  6  Johnson,  160.  It  was  deci- 
ded there,  that  a  sudden  failure  of  the  wind,  whereby  the  vessel  tacking 
was  unable  to  change  her  tack,  and  so  was  sent  ashore,  was  an  act  of  God  : 
it  is  stated  in  the  evidence,  and  the  opinion,  that  the  wind  was  light  and 
variable  :  that  they  were  standing  for  the  west  shore,  and  had  approached 
it,  as  near  as  was  usual  and  proper,  when  they  put  down  the  helm  to  bring 
her  about,  the  jib-sail  began  to  fill,  the  vessel  had  partly  changed  her  tack, 
when  the  wind  suddenly  ceased  blowing,  and  the  head  way  under  which 
the  vessel  was  shot  her  on  the  bank.  "The  sudden  gust,  in  the  case  of 
the  hoyman,"  says  Spencer,  J.,  alluding  to  the  case  of  Amies  v.  Stephens, 
1  Str.  128,  "and  the  sudden  and  entire  failure  of  the  wind  sufficient  to 
enable  the  vessel  to  beat,  are  equally  to  be  considered  the  acts  of  God. 
He  caused  the  gust  to  blow  in  the  one  case  ;  and  in  the  other,  the  wind 
was  stayed  by  him."     This  may  be  very  fair  divinity  ;  and  upon  such  a 


234  smith's   leading   cases. 

theological  theory  of  causation,  every  thing  may  be  the  act  of  God ;  but  it 
is  the  most  extraordinary  version  of  the  principle  on  which  a  common  car- 
rier is  discharged  from  liabihty  tliat  the  books  contain,  and  upon  the  autho- 
rity of  later  cases,  may  confidently  be  pronounced  to  be  wrong.  Kent, 
Ch.  J.,  in  fact  substantially  dissented  :  for  while  he  assented  to  the  theo- 
logy of  Spencer,  J.,  that  the  slopping  of  th^  wind  was  the  act  of  God,  he 
thought  there  "  was  a  degree  of  negligence  imputable  to  the  master,  in 
sailing  so  near  the  shore  under  a  light  variable  wind,  that  a  failure  in 
coming  about,  would  cast  him  aground.  He  ought  to  have  exercised  more 
caution,  and  guarded  against  such  a  probable  event,  in  the  case,  as  the  want 
of  wind  to  bring  his  vessel  about,  tfcc.  ;"  in  other  words,  he  thought  it  not 
such  an  act  of  God  as  takes  away  the  legal  inference  of  negligence.  The 
principle  so  clearly  and  carefully  ascertained  in  M'Arthur  &  Hurlbert  v. 
Sears,  controls  both  this  case  and  Williams  and  others  v.  Grant  and  others. 
The  principle  that  all  human  agency  is  to  be  excluded  from  creating  or 
entering  into,  the  cause  of  mischief,  in  order  that  it  may  be  deemed  the  act 
of  God,  shuts  out  those  cases  where  the  natural  object  in  question  is  made  a 
cause  of  mischief  solely  by  the  act  of  the  captain  in  bringing  his  vessel  into 
that  particular  position  where  alone  that  natural  object  could  cause  mischief ; 
in  the  two  cases  in  question,  it  was  the  act  of  the  captain  that  imparted  to  the 
natural  objects  all  the  mischievous  qualities  that  they  possessed  ;  for  rocks, 
shores,  currents,  and  dying  breezes,  are  not  by  their  own  nature  and  inhe- 
rently, agents  of  mischief  and  causes  of  danger,  as  tempests,  lightning,  &c., 
are  ;  the  danger  therefore  sprang  from  human  agency.  It  may  be  thought 
that  in  principle  the  distinction  does  not  amount  to  much,  for  that  the  carrier 
is  always  liable  for  his  own  negligence,  and  it  is  easy  to  see  that  such  acci- 
dents never  can  prove  fatal  without  negligence  on  his  part.  But  practically 
the  distinction  is  of  the  first  importance,  because,  it  affects  the  burden  of 
the  proof:  and  the  confusion  of  the  distinction  tends  to  thwart  the  wise 
provision  of  the  common  law,  which  will  not  allow  the  carrier  to  throw 
upon  the  employer  the  burden  of  proving  or  inferring  negligence  or 
defective  means  in  the  carrier,  until  he  has  shown  the  intervention  of  such 
an  extraordinary,  violent,  and  destructive  agent,  as  by  its  very  nature 
raises  a  presumption  that  no  human  means  could  resist  its  effect.  Upon  the 
whole,  it  would  seem  that  an  act  of  God  signifies  the  extraordinary  violence 
of  nature. 

It  has  been  said  above  that  the  carrier  is  always  liable  for  injuries  result- 
ing from  his  own  negligence  ;  including  of  course,  defects  in  the  means  of 
transportation  provided  by  him  ;  he  is  therefore  liable  for  those  injuries 
which  the  violence  of  nature  causes  in  consequence  of  his  negligence  or 
defective  means.  The  course  of  proof  in  regard  to  a  common  carrier 
appears  to  be  thus  :  By  proving  the  delivery  of  the  thing  to  him  to  be  carried 
by  him,  the  burden  of  accounting  for  it  is  thrown  upon  him  :  and  he  must 
either  show  the  safe  delivery  of  the  goods,  or  prove  that  the  loss  occurred 
by  one  of  the  excepted  causes.  Murphey,  Brown  &  Co.  v.  Staton,  3  Mun- 
ford,  239  ;  Craig  v.  Childress,  Peck,  270  ;  Turney  v.  Wilson,  7  Yerger, 
340  ;  Ewart  v.  Street,  and  SmyrI  v.  Niolon,  2  Bailey,  (So.  Car.)  157,  421, 
If  the  carrier  prove  that  the  injury  or  loss  was  occasioned  by  one  of  those 
oecurrences  which  are  termed  the  act  of  God,  prima  facie  he  discharges 
himself;  and  the  onus  of  proving  that  the  alleged  cause  or  agency  would 


COGGS     V.     BARNARD.  235 

not  have  produced  the  loss  or  injury  without  his  negligence  or  defective 
means,  is  thrown  upon  the  plaintiff:  but  if  the  plaintiff  can  prove  such 
negligence  or  defective  means,  on  his  part,  as  that  without  their  co-opera- 
tion, the  violence  of  nature  might  not  have  resulted  in  occasioning  a  loss, 
he  shall  recover.  Bell  v.  Reed  &  Beelor,  4  Binney,  137  ;  Hart  v.  Allen 
&  Hart,  2  Watts,  114  ;  Reed  v.  I.  &.  I.  Dick,  8  id.  479  ;  Williams  and 
others  v.  Grant  and  others,  1  Connecticut,  487  ;  Lawrence  v.  iVI'Gregor, 
Wright,  193  :  Putman  v.  Wood,  3  Massachusetts,  481  ;  Faulkner  &  Cams 
V.  Wright,  Coker  &  Tuttle,  Rice,  108.  The  true  way  of  looking  at  this  is 
not  that  the  carrier  discharges  his  peculiar  liability  by  showing  an  act  of 
God,  and  is  then  made  responsible  as  an  ordinary  agent,  for  negligence ; 
but  that  the  intervention  of  negligence  breaks  the  carrier's  line  of  defence 
by  showing  that  the  injury  or  loss  was  not  directly  caused  by  the  act  of 
God,  or  more  correctly  speaking,  was  not  the  act  of  God. 

Exceptions  to  a  carrier's  liability. — In  Phillips  v.  Earle  et  al.,  8  Picker- 
ing, 182,  it  is  decided  that  a  carrier' is  liable  for  the  loss  of  a  valuable  pack- 
age, though  not  informed  of  the  value  of  the  contents  ;  but  it  is  said  he 
would  not  be,  if  deceived  as  to  the  value,  for  that  would  be  a  fraud.  The 
same  principle  is  established  in  Relf  v.  Rapp,  3  Watts  &  Sergeant,  21  ;  and 
it  is  there  decided,  that  where  a  fraudulent  misrepresentation  is  made,  as  by 
marking  a  box  of  jewelry  "glass,"  the  carrier  is  not  liable  for  the  value  of 
the  jewelry.  A  principle,  similar  to  that  of  these  cases,  is  established  by  the 
fine  discussions  in  Hollister  v,  Nowlen,  and  Cole  v.  Goodwin  and  Story,  19 
Wendell,  235  and  252  ;  and  the  points  considered  as  settled  in  those  cases 
are,  agreeably  to  the  afore-cited  cases ;  that  it  is  not  the  duty  of  the  owner 
to  disclose  the  value  and  nature  of  the  contents  of  his  parcels,  but  the  car- 
rier is  liable,  whatever  they  may  be  ;  but  the  carrier  has  a  right  to  require 
from  the  owner  or  traveller,  to  be  informed  of  the  value,  that  he  may  know 
what  degree  of  care  is  necessary,  and  may  make  his  charge  according  to 
the  responsibility  ;  and  if  he  make  such  demand,  and  the  owner  is  guilty 
o[  fraud  in  misrepresenting  the  nature  and  value,  the  common  carrier's 
extraordinary  liability  is  remitted  ;  but  knowledge  that  the  carrier  requires 
this  information  must  be  brought  home  directly  to  the  employer,  and  gene- 
ral notices  stuck  up  in  public  places,  or  advertised,  however  extensively,  are 
not  sufficient  evidence  of  fraud  in  him;  and  it  is  strongly  doubted,  if  not 
denied,  in  these  cases,  that  if  the  employer  has  seen  the  notices,  it  is 
enough  ;  there  should  be  particular  and  special  inquiry  from  him. 

This  question  is  a  wholly  different  one  from  that  of  the  right  of  the  car- 
rier to  rid  himself  of  this  extraordinary  liability,  by  notice  or  a  special 
acceptance  ;  it  concerns  only  his  right  to  require  information  of  the  value, 
that  he  may  regulate  his  care  and  charges  accordingly.  And  it  is  highly 
satisfactory  to  obseve  that  the  American  cases  all  put  this  exception  on  the 
ground  o^ fraud  in  the  owner,  and  not  on  the  ground  of  special  contract  or 
notice.  There  is  no  doubt  that  this  is  in  perfect  accordancy  with  legal 
principle,  and  the  superior  propriety  of  resting  the  exception  on  fraud,  as 
concerns  principle,  and  the  burden  of  proof  is  ably  and  abundantly  vindi- 
cated by  Bronson,  J.,  in  Hollister  v.  Nowlen. 

That  it  is  possible  for  a  common  carrier,  by  either  general  notice,  or  a 
special  acceptance,  to  limit  his  extraordinary  liability,  is  a  position  which, 
it  is  believed,  is  not  supported  by  the  authority  of  any  adjudged  case  in  the 


236  smith's   leading   cases. 

United  States.  The  reverse  opinion  has  been,  repeatedly  favoured  by  judges, 
and  is  now  decided  in  one  of  the  states. 

In  HoUister  v.  Nowlen,  19  Wendell,  235,  the  point  adjudged  by  the 
court,  (according  to  Bronson,  J.'s,  statement  of  the  point  in  Cole  v.  Good- 
win &  otory,  id,  254,)  is,  that  stage-proprietors  cannot  limit  their  liabihty 
by  a  general  notice  brought  home  to  the  employer  ;  and  in  Camden,  &c. 
Transportation  Co.  v.  Belknap,  21  Wendell,  355,  the  same  point  is  again 
affirmed  to  be  the  settled  law  of  the  court :  see  also  Logan  v.  The  Pont- 
chartrain  Rail  Road  Company,  11  Robinson's  Louisiana,  24,  In  Hollister 
V.  Nowlen,  and  Cole  v.  Goodwin  &  Story,  the  effect  of  a  special  acceptance, 
or  express  contract,  excepting  certain  risks  from  the  carrier's  liability,  was 
left  undecided,  though  Mr.  Justice  Covven,  in  the  latter  case,  after  an  elabo- 
rate investigation  of  the  English  cases,  which,  as  he  shows,  have  been  not 
a  little  misapprehended  on  this  point,  and  the  principles  of  the  rule,  came 
to  the  conclusion  that  such,  agreements  are  invalid  ;  and  at  a  subsequent 
time,  upon  that  point  coming  up  in  Gould  and  others  v.  Hill  and  others,  2 
Hill's  N.  Y.  623,  where,  upon  delivery  of  goods  to  the  common  carrier,  a 
written  memorandum  had  been  received  from  him,  engaging  to  deliver  the 
goods,  (danger  o{  Jire,  &c.  excepted,)  which  the  court  held  "  undoubted 
\  evidence  of  assent,  on  the  part  of  the  employer,"  and  the  goods  were  sub- 
I  sequently  destroyed  by  fire,  without  any  negligence  on  the  carrier's  part, 
I  the  Supreme  Court  adopted  the  opinion  of  Judge  Cowen,  and  decided  that 
\^  all  such  agreements  are  void. 

In  the  absence  of  any  contradictory  decision,  it  may  well  be  considered 
that  the  thorough  discussion  the  matter  underwent  in  the  cases  of  Hollister 
V.  Nowlen,  and  Cole  v.  Goodwin  &  Slor)^  has  settled  the  principle  of  law 
for  this  country,  "The  rale  of  the  common  law,"  says  Bronson,  J.,  "is 
founded  upon  a  great  principle  of  public  policy  ;  it  has  been  approved  by 
many  generations  of  wise  men,  and  if  the  courts  were  now  at  liberty  to 
make,  instead  of  declaring  the  law,  it  may  well  be  questioned  whether 
they  could  devise  a  system,  which,  on  the  whole,  would  operate  more 
beneficially.  I  feel  the  more  confident  in  this  remark,  from  the  fact,  that 
in  Great  Britain,  after  the  courts  had  been  perplexed,  for  thirty  years,  with 
various  modifications  of  the  law  in  relation  to  carriers,  and  when  they 
had  wandered  too  far  to  retrace  their  steps,  the  legislature  finally  inter- 
fered, and  in  its  more  important  features  restored  the  salutary  rule  of  the 
common  law  :"  p.  241  ;  "  The  doctrine  that  a  carrier  may  limit  his  respon- 
sibility by  a  notice,  was  wholly  unknown  to  the  common  law  at  the  time 
of  our  Revolution.  It  has  never  been,  received  in  this,  nor,  so  far  as  I 
have  observed,  in  any  of  the  states.  Should  it  now  be- received  among 
us,  it  will  be  after  it  has  been  tried,  condemned,  and  abandoned  in  that 
country  to  which  we  have  been  accustomed  to  look  for  light  on  questions 
of  jurisprudence  ;"   p,  248. 

But  though  the  principle,  that  no  efliect  is  to  be  given  to  these  limitary 
notices,  has  not  elsewhere  been  decided,  a  kindred  policy  has  been  generally 
adopted,  and  by  construing  such  notices  with  great  rigor,  and  throwing  vari- 
ous obstacles  in  the  way,  the  matter  has  been  so  managed,  that,  it  is  believed 
no  carrier,  charged  upon  his  common-law  liability,  has  ever  protected  him- 
self, in  a  court  of  law,  by  such  a  notice.  In  Barney  v.  Prentiss  &  Carter,  4 
Harris  &  Johnson,  317,  the  court  declined  to  say  whether  common  carriers 


COGGS     V.     BARNARD.  237 

could,  by  any  publications,  exonerate  themselves,  but  decided  that,  admitting 
that  they  could,  the  notice  must  be  plain,  explicit,  and  free  from  all  ambiguity, 
and  that,  as  the  defendant,  in  his  notices,  had  used  ambiguous  and  doubtful 
language,  he  stood  as  if  no  notice  had  been  published.     In  Beans  v.  Green 
et  al.,  3  Fairfield,  422,  the  admission  of  the  doctrine  of  notice  was  regretted, 
and  it  was  decided  that   general   notice   that   the  carrier  will  not  be  liable, 
unless  the  fare  is  paid,  and  the  article  entered  on  the  way-bill,  was  nought, 
unless  clearly  brought   home  to  the  actual  knowledge  of  the  party  to  be 
affected.     In  Pennsylvania,  there  are  numerous  and  strong  dicta  against  the 
expediency  of  allowing  any  limitation  of  the  carrier's   liability;  see  per 
Rogers,  J.,  in  Beckman  &  Johnson  v.  Shouse  et  al.,  5  Rawle,  179,  who 
says,  that  when  notice  is  set  up,  "not  only  the   notice   should  be  brought 
home  to  the  employer,  but  also  that  the  terms  of  the  notice  should  be  clear 
and  explicit,  and  not  liable  to  the  charge  of  ambiguity  or  doubt:"  per  the 
same,  in   Eagle  v.  White,   6  Wharton,  505,  who  says,  it  is   a   principle 
"  which  has  stood  the  test  of  experience,  and  which  we  are  unwilling  to  see 
frittered  away,  further  than  has  been  already  done  in  those  cases  where  car- 
riers have  been,  as  I  think,  unwisely  permitted  to  limit  their  own  responsi- 
bility :"  per  Gibson,  C.  J.,  in  Attwood  v.  Reliance  Transportation  Co.,  9 
Watts,  87,  who  says,  "The  maxim  that  any  one  may  dispense  with  a  rule 
provided  for  his   exclusive  benefit,  is  not  without  its  exceptions,  and  not- 
withstanding the  unfortunate   direction  given  to  the  decisions  at  an  early 
day,  it  is  still  almost  susceptible  of  a  doubt,  whether  an  agreement  to  lessen 
the  common-law  measure  of  a  carrier's  responsibility,  like  an  agreement  to 
forego  a  fee-simple  tenant's   right  of  alienation,  or  a  mortgagor's  right  of 
redemption,  is  not  void  by  the  policy  of  the  law.      That  the  bailor  is  left  as 
much  at  another's   mercy,  by  an  agreement  like   the  present,  (excepting 
"dangers  of  the   navigation,  fire,  leakage,  and  all  other  unavoidable   acci- 
dents,") as  a  borrower  would  be  by  an  agreement  to  turn  his  mortgage  into 
a  conditional  sale,  is  entirely  evident  from  the  fact  that  the  carrier  has  the 
exclusive  custody  of  the  goods,  and  that  to  convict  him  of  negligence  in  his 
function,  would  be  as  impracticable  as  to  convict  him  of  connivance  at  rob- 
bery, against  which  the  common-law  rule  of  his  responsibility  was  intended, 
more  especially,  to  guard.     From  his  servants,  who  are  usually  the  only 
persons  that  can  speak  of  the  matter,  it  would  be  idle  to  expect  testimony 
to  implicate  themselves,  and  the  owner  can  seldom  have  any  other  account 
of  his  property  than  what  they  may  choose  to  give  him.     Such  a  state  of 
things  is  not  to  be  encouraged  ;  and  though  it  is,  perhaps,  too  late  to  say 
that  a  carrier  may  not  accept  his  charge  in  special  terms,  it  is  not  too  late  to 
say  that  the  policy  which  dictated  the  rule  of  the  common  law,  requires 
that  exceptions  to  it  be  strictly  interpreted,  and  that  it  is  his  duty  to  bring 
his  case  strictly  within  them."  These  remarks  were  relied  on  by  the  court, 
in  Gould  and  others  v.  Hill  and  others,  as  encouraging  them  to  come  to  the 
conclusion   there  reached.     The  case  of  Bingham  v.  Rogers,  6  Watts  & 
Sergeant,  495,  settles  nothing  on  this  point. 

But  even  if  effect  be  given  to  notices  or  special  acceptances,  they  can 
only  operate  to  discharge  the  extraordinary  liability  of  the  carrier,  and,  on 
the  authority  of  Alexander  and  others  v.  Greene  and  others,  3  Hill's  N.  Y. 
9,  to  discharge  them  from  the  liability  of  a  warehouseman,  or  other  bailee 
for  hire.     He  will  still  be  liable  to  any  losses  occasioned  by  his  own  act  or 


238  smith's    leading   cases. 

fraud,  or  by  such  negligence  or  defective  means  as  would  render  an  unpaid 
agent  liable.  This  is  the  point  decided  in  Camden,  &c.  Co.  v.  Burke,  13 
Wendell,  611,  before  the  doctrine  of  notice  was  wholly  rejected.  Such  is 
the  principle  asserted  in  Beckman  &  Johnson  v.  Shouse,  et  al.,  5  Rawle, 
179.  189. 

While,  however,  these  exceptions  made  by  those  who  are  common  car- 
riers, are  generally  to  be  regarded  as  against  the  policy  of  the  law,  yet  there 
seems  to  be  some  obscurity  as  to  what  persons  are  common  carriers  in  this 
point  of  view.  Without  opening  doubts  upon  this  part  of  the  law,  and  with- 
out going  into  the  principle  of  the  distinction,  it  seems  to  be  settled  and 
unquestionable,  that  the  liability  of  carriers  by  sea,  and  upon  the  great 
rivers,  may,  by  the  bill  of  lading,  be  limited,  at  least  to  the  extent  of  except- 
ing the  "perils  of  the  navigation,"  the  meaning  of  which  is  explained  in  a 
former  part  of  this  note.  See  Putnam  v.  Wood,  3  Mass.  481  ;  Schieffclin 
and  another  v.  Harvey,  6  Johnson,  170.  180.  This  is  a  trade  in  which  the 
carrying  has  always  been  by  bill  of  lading,  and  that  particular  exception 
has  been  used  in  bills  of  lading  for  ages,  and  old  and  universal  usage  may 
be  considered  as  having  established  it  ;  but  the  exceptions  of  fire,  leakage, 
&c.,  now  frequently  used  in  bills  of  lading,  are  of  modern  practice,  and  the 
cases  do  not  authorise  their  being  deemed  valid.  But  as  to  carriage  by  land 
and  on  canals,  the  principle  of  Gould  and  others  v.  Hill  and  others,  is  not 
opposed  by  any  American  case. 

Common  carriers  may  be  sued  either  in  case  on  the  custom,  or  in  assumpsit 
on  their  contract,  and  the  action  chosen  will,  as  to  joinder  of  defendants,  be 
governed  by  its  own  rules  ;  M'Call  v.  Forsyth,  4  Watts  &  Sergeant,  179  ; 
Zell  V.  Arnold,  2  Penrose  &  Watts,  292  ;  Hunt  v.  AVynn,  6  Watts,  47  ; 
Bank  of  Orange  v.  Brown  and  five  others,  3  Wendell,  158,  where  the  sub- 
ject is  extensively  examined. 

3.  Ordinary  paid  agents,  and  unpaid  agents. 

All  the  other  cases  in  which  properly  is  confided  to  the  possession  of 
another,  are  distinguishable  into  two  classes  ;  1.  Where  the  employee  is  a 
paid  agent :  2.  Where  he  is  not  paid.  The  conduct  of  an  employee  of 
either  class,  after  receiving  possession,  may  be  such  as  to  render  him  liable 
in  trover  for  the  conversion  of  the  goods,  or  in  case  or  assumpsit  for  injury 
or  loss.  Before  speaking  of  the  specific  liabilities  of  the  two  classes  for 
injuries  or  a  loss  arising  from  their  breach  of  duty,  or  from  their  neglect,  it 
will  be  proper  to  consider  the  action  of  trover  ;  for  the  same  principles  in 
respect  to  its  use,  apply  to  all  cases  in  which  property  is  lawfully  in  the 
possession  of  another ;  that  is,  to  the  case  of  innkeepers,  carriers,  ordinary 
paid  agents  and  unpaid  agents,  finders,  &c.  (It  has  not  been  deemed 
necessary  to  take  notice  of  the  action  of  detinue,  because  it  is  an  anti- 
quated remedy,  and  because  the  other  actions  cover  the  whole  ground  of 
the  liability.) 

As  the  original  possession  is  rightful,  trover  will  not  he,  unless  there  be 
a  conversion.  If  there  be  no  proof  of  a  positive  act  of  conversion,  there 
must  be  a  demand  and  refusal,  in  order  to  ground  the  action.  Hosmer  v. 
Clarke,  2  Greenleaf,  308.  A  demand  and  refusal  is  prima  facie  evidence 
of  conversion  ;  but  the  presumption  is  rebutted,  if  it  appear  that  the  pro- 
perty was  not  in  the  defendant's  possession  or  control  at  the  time,  but  was  lost 
or  stolen.   Lockwood  v.  Bull&  Eager,  1  Cowen,  322  ;  Packard  v.  Getman, 


COGGS     V.     BARNARD.  239 

6  id.  757  ;  HallenbaLe  v.  Fish,  8  Wendell,  547,  relating  to  innkeepers, 
who  stand  precisely  as  common  carriers.  If  the  property  have  been  used 
by  the  defendant,  against  the  permission  expressed  or  implied  upon  the 
delivery,  or  sold,  or  delivered  to  another,  or  destroyed  by  the  defendant,  this 
is  a  conversion,  and  trover  is  the  remedy.  Murray  v.  Ogden  &  Burling, 
10  Johnson,  172  ;  Bullard  v.  Young,  3  Stewart,  46;  but  there  is  no  con- 
v^ersion,  and  trover  will  not  lie,  where,  without  an  act  of  the  defendant,  the 
goods  have  been  lost,  or  have  been  stolen,  but  the  remedy  is  assumpsit  or 
case.  Packard  v.  Getman,  4  Wendell,  613  ;  Moses  et  al.  v.  Norris,  4  N. 
H.  304  ;  Hawkins  v.  Hoffman,  6  Hill,  586.  Nor  will  trover  lie  by  the 
bailor,  not  really  owning  the  goods,  where  the  bailee  has  delivered  them  to 
the  true  owner.  King  and  another  v.  Richards,  6  Wharton,  418.  Where 
things  have  been  loaned  or  hired  for  a  definite  purpose,  and  are  used  for 
another  purpose,  this  is  at  once  a  conversion,  and  trover  is  the  remedy.  In 
Wheelock  v.  Wheelright,  5  Massachusetts,  104,  it  is  decided  that  if  one 
hire  a  horse  to  go  to  a  certain  specified  distance,  and  he  go  further  and 
elsewhere,  this  is  a  conversion  ;  the  remedy  is  trover,  and  not  case  ;  had 
the  horse  been  returned,  the  return  had  gone  to  the  reduction  of  the 
damages  ;  being  killed,  the  plaintiff  was  entitled  to  recover  the  actual  value 
of  the  horse  at  the  time  of  the  conversion.  In  Homer  v.  Thwing  et  al.,  3 
Pickering,  492,  the  same  principles  are  established,  and  it  is  decided,  that 
under  the  same  circumstances,  trover  lies  against  an  infant.  In  Rotch  et 
al.  v.  Hawes,  12  id.  136,  these  principles  are  approved :  but  it  is  held,  that 
if  the  owner  ratify  this  extension  of  the. original  hiring,  by  accepting  pay- 
ment for  the  whole,  this  is  equivalent  to  an  original  hiring  for  the  whole, 
and  trover  will  not  lie  ;  but  case  will  lie  for  any  injury  done  to  the  horse. 
In  M'Neils  v.  Brooks,  1  Yerger,  73,  it  is  decided  that  the  hirer's  carrying 
excessive  burdens  with  him  on  a  riding-horse  is  no  conversion  ;  for  any 
injury,  the  remedy  must  be  case,  and  not  trover;  but  if  the  animal  had 
been  appropriated  to  a  different  use,  as  by  going  elsewhere,  it  had  been  a 
conversion. 

The  liability  of  paid  agents,  where  there  has  been  no  conversion,  differs 
from  that  of  unpaid  agents.  As  to  the  former,  the  obligation  is  not,  as  ia 
case  of  a  common  carrier,  to  carry,  or,  as  in  case  of  an  innkeeper,  to  keep  ; 
but  the  contract  is,  for  the  services  of  the  employee,  for  diligence  and  skill 
in  the  agency  or  work  undertaken  ;  and  the  liability  is,  for  want  of  diligence 
in  the  ordinary  duty  of  a  professional  person  of  the  kind  in  question,  or, 
which  is  the  same  thing,  for  negligence  in  the  ordinary  course  of  the 
service  ;  doing  or  omitting  what  ought  to  be  not  done,  or  done,  in  the 
common  routine  of  the  profession.  In  the  case  of  the  latter,  there  is  no  contract 
at  all  ;  there  is  no  legal  liability  but  for  wrongful  conduct  ;  for  negligence 
that  causes  mischief,  or  for  collusion  ;  for  what  the  law  denominates/raw^/. 
In  both  it  is  believed,  that  the  legal  principle  and  measure  of  liability,  is 
not  in  any  degree  affected  by  the  fact  that  the  possession  of  the  properly  is 
delivered  to  the  employee  ;  in  other  words,  that  bailment  is,  at  the  present 
day,  no  necessary  title  in  the  law.  As  respects  the  former  class,  the  duty 
or  liability  of  a  paid  agent,  to  whom  property  is  delivered,  as  a  warehouse- 
man, or  forwarding  agent,  is  the  same  as  that  of  a  person  employed  about 
property  in  the  possession  of  the  employer,  as  where  there  is  no  specific 
article  of  property  in  the  case,  as,  a  domestic  servant  or  out-door  servant,  an 


240  smith's   leading  cases. 

attorney,  a  physician,  a  commercial  agent.  As  respects  the  latter  class, 
though  the  fact  of  delivery,  and  the  circumstances  attending  it,  may  strongly 
affect  the  evidence,  yet  the  legal  ground  and  principle  of  liability,  is  the 
same  where  an  unpaid  person  is  made  responsible  for  the  injury  or  loss  of 
property  in  possession  of  the  owner,  and  where  the  property  has  been 
delivered  into  his  possession. 

In  stating  their  liabilities,  the  two  classes  may  be  considered  separately. 

As  to  ordhvary  paid  agents,  having  possession  of  goods,  it  has  been 
remarked  above,  that  the  contract  made,  and  the  duty  undertaken  by  them, 
is  to  give  skill  and  diligence  in  the  profession  or  business  undertaken  ;  and 
to  know  the  extent  of  this,  reference  must  be  had  to  the  particular  profession 
or  business  in  hand,  and  the  extent  of  labour  and  ability  ordinarily  under- 
stood to  be  required  by  it.  Insufficiency  of  means  or  skill,  and  want  of 
diligence,  according  to  the  ordinary  demands  of  the  business,  render  the 
party  liable.  Want  of  ordinary  diligence,  or,  which  is  the  same  thing, 
ordinary  negligence,  is  the  language  used  by  the  cases  in  defining  the 
liability  of  a  paid  agent:  see  Knapp  &  Curtis  v.  Root,  9  Wendell,  60  ; 
Schmidt  &  Webb  v.  Blood  &  Green,  id.  268,  cases  of  warehousemen  ; 
Caton  V.  Rumney,  13  id.  387,  the  case  of  a  steamboat  towing  a  freight- 
boat  ;  Brown  v.  Denison,  2  id.  593,  the  case  of  a  forwarding  merchant ; 
Ware  v.  Gay  and  others,  11  Pickering,  106,  the  case  of  stage-owners' 
liability  for  injuries  to  passengers  by  the  breaking  down  of  the  coach, 
where  it  was  held  that  insufficiency  in  the  coach,  or  carelessness  in 
conducting  it,  must  be  proved;  and  Stokes  v.  Sallonstall,  13  Peters,  181, 
is  to  the  same  effect;  M'Caw  v.  Kimbul,  4  M'Cord,  220,  the  case  of  a 
cotton-ginner ;  Newton  v.  Pope,  1  Cowen,  109,  the  case  of  one  hired  to 
drive  horses. 

The  attempts  made  by  some  of  the  judges  to  explain  to  the  jury  what  is 
meant  by  ordinary  neglect,  by  saying  that  it  is  the  degree  of  care  which  a 
prudent  man  takes  in  relation  to  his  own  affairs,  or  other  similar  periphrases, 
have  not  been  very  felicitous.  It  seems  to  be  strictly  right,  and  far  more 
intelligible  and  practical,  to  say,  as  was  decided  in  Moore  v.  The  Mayor,  &c. 
of  Mobile,  1  Stewart,  284,  to  be  correct,  that  a  paid  agent  is  liable,  if  negli- 
gent, and  not  liable,  if  not  negligent. 

The  action  against  a  paid  agent  may  be  either  assumpsit  or  case  ;  the 
contract  is,  for  performing  what  is  the  legal  duty  ;  and  a  breach  of  legal 
duty  is  a  fraud  :  or,  as  stated  by  Tindal,  G.  J.,  in  pronouncing  the  judgment 
of  the  Exchequer  Chamber,  in  Boorman  v.  Brown,  3  Q,.  B.  511.  526,  "  the 
contract  creates  a  duty,  and  the  neglect  to  perform  that  duty,  or  the  non- 
feasance, is  a  ground  of  action  upon  a  tort."  See  M'Call  v.  Forsyth,  4  Watts 
&  Sergeant,  179 ;  Zell  v.  Arnold,  2  Penrose  &  Watts,  292  ;  M'Cahan  v. 
Hirst,  7  Watts,  175  ;  How  v.  Cook,  21  Wendell,  29. 

In  Alexander  and  others  v.  Green  and  others,  3  Hill's  N.  Y.,  9,  it  is 
decided,  that  ordinary  paid  agents,  or  bailees  for  hire,  may  by  a  special 
agreement  or  acceptance,  discharge  themselves  from  their  implied  liability 
for  ordinary  diligence,  and  that  a  contract  to  tow  a  boat  "  at  the  risk  of 
the  master  or  owners  thereof,"  did  discharge  them  from  liability  for  "every 
risk  arising  from  a  want  of  ordinary  care  and  skill ;"  but  that  no  man  can,  by 
any  contract,  discharge  himself  from  liability  for  his  fraudulent  acts.     The 


COGGS    V.     BARNARD.  241 

accuracy  of  this  case  is  very  doubtful ;  the  exception  seems  directly  to  con- 
tradict and  repel  the  contract. 

Unpaid  agents,  who  have  possession  of  the  property  of  others,  are  persons 
undertaking  to  keep,  or  carry,  or  perform  something  about  the  thing,  with- 
out reward  ;  borrowers,  hirers, — for  though  a  hirer  pays  for  the  use  of  the 
article  he  is  not  paid  to  take  care  of  it, — finders,  pawnees,  &c.  In  all  these 
cases  there  is  no  contract ;  and  if  there  has  been  no  conversion,  so  that 
trover  will  not  lie,  the  only  remedy  for  loss  or  injury,  is  by  action  on  the 
case.  It  is  true  that  in  the  books  of  precedents,  we  find  in  respect  to  some 
of  these  persons,  especially  hirers,  declarations,  called  in  assumpsit  ;  but  a 
little  attention  to  these  declarations,  will  show,  that,  effectively,  they  are  in 
case.  They  are  mixed  declarations  and  have  a  double  aspect.  They  set 
out  an  assumpsit  for  reasonable  diligence  ;  and  then  say  that  the  defendant 
did  not  perform  his  promise,  but,  on  the  contrary,  was  so  negligent,  &c.,  that 
by  reason  of  his  negligence,  &c.,  the  damage  or  loss  ensued, — a  clause  purely 
in  case.  Now,  even  if  any  court  would,  for  convenience,  sustain  such  a  count 
as  assumpsit, — which  even  the  laxest,  it  is  believed,  if  attention  were  called  to 
the  point,  could  not  do, — still  it  is  certain  that  the  latter  clause,  charging 
negligence  as  to  the  cause  of  damage  must  be  proved  ;  and,  therefore,  even 
under  this  lax  style  of  declaring,  we  are  still  bound  to  say,  that  no  conduct 
will  render  the  defendant  liable,  but  such  as  will  sustain  a  count,  or  clause 
of  a  count,  in  case.  We  may,  therefore,  affirm,  almost  with  the  certainty 
of  fact,  and  with  a  confidence  which  no  dicta,  or  even  decisions,  unless 
those  decisions  have  first  altered  the  pleadings,  which  they  have  not  done, 
ought  to  disturb,  that  the  principle,  and  legal  ground  and  extent,  of  an 
unpaid  bailee,  or  person  to  whom  goods  are  delivered,  for  injury  or  loss  to 
the  goods,  is  the  same  as  that  of  one  to  whom  goods  have  not  been  delivered, 
but  from  whose  negligence  or  carelessness,  injury  or  loss  has  ensued,  while 
the  goods  were  in  the  plaintiff''s  possession.  Here,  then,  is  a  legal  defini- 
tion— plain,  precise,  and  practical — of  the  liability  of  one  who  is  in  posses- 
sion of  another's  property,  and  is  not  paid  for  his  services  ;  and  the  particu- 
lar question  respecting  unpaid  bailees,  resolves  itself,  legally,  into  the  more 
general  inquiry,  What  is,  in  any  case,  necessary  to  sustain  an  action  on  the 
case  ?  In  the  notes  to  Scott  v.  Shepherd,  Ashby  v.  White,  and  Pasley  v. 
Freeman,  (infra,)  the  reader  will  find  some  illustrations  of  this  action.  It 
appears  that  case  will  lie  for  any  injury  resulting  from  the  fraudulent  con- 
duct of  another,  and  any  conduct  is  fraudulent,  within  the  scope  of  this 
remedy,  which  is  necessarily  or  reasonably  the  cause  of  damage,  and  is  not 
requisite  to  the  enjoyment  of  the  defendant's  own  rights.  The  real  point 
of  inquiry  then  is,  whether  upon  the  whole  state  of  the  case,  from  the 
beginning  to  the  end  of  it,  the  defendant  is  fairly  responsible  as  the  legal 
cause  of  the  injury.  It  is  impossible  to  lay  down  any  general  rule  as  to  the 
requisite  proximity  and  directness  of  the  defendant's  agency  in  the  mischief. 
In  Essex  Bank  v.  Gloucester  Bank,- 17  Massachusetts,  1,  30,  there  is  an  able 
investigation  of  the  degree  of  directness  necessary  to  make  a  defendant's 
negligence  the  legal  and  actionable  cause  of  mischief.  It  may  be  observed, 
that  the  law,  when  it  is  led  on  by  the  scent  of  bad  faith  or  unfair  dealing, 
will  go  extremely  far  in  fixing  the  responsibility  of  causation  upon  a  defend- 
ant;  and  any  one  who  will  familiarise  his  mind  with  the  principles  of  law, 
and  evidence,  and  reasoning,  embodied  in  such  cases  as  Pasley  v.  Freeman, 

Vol.  i.~16 


242  SMITHS    I-EADING     CASES. 

will  have  no  difficulty  in  understanding  what  circumstances  will  make  an 
unpaid  bailee  liable.  We  learn  from  that  case,  and  those  which  have  fol- 
lowed it,  that  if  a  defendant  has  knowingly  made  false  representations  about 
the  circumstances  of  another,  and  the  plaintiff,  acting  upon  them,  has  suf- 
fered a  loss,  the  defendant  is  in  law  responsible,  as  the  legal  cause  of  that 
loss.  If  the  representations  or  promises  of  a  defendant  have  caused  or 
induced  the  plaintiff  to  put  his  property  into  the  defendant's  possession,  it  is 
easy  to  see,  that  if  his  subsequent  conduct  falsifies  those  promises  and 
expectations,  and  if  the  trusting  of  the  property  to  his  possession,  is,  upon 
a  fair  view  of  the  whole  case,  to  be  regarded  as  the  cause  of  an  injury  that 
befals  it,  though  proceeding  from  the  agency  of  nature,  or  the  acts  of  third 
persons,  the  defendant's  false  representations  and  bad  faith,  may  justly  be 
considered  the  legal  and  frail  did  ent  cause  o(  the  injury;  but,  as  before 
remarked,  everything  must  depend  on  the  particular  circumstances.  Again, 
if,  after  the  the  property  is  in  the  defendant's  possession,  he,  by  positive 
act,  exposes  it  in  such  a  way  as  to  invite  and  bring  on  injury  from  third 
persons,  he  will,  in  many  cases,  be  properly  considered  as  the  cause  of  the 
injury ;  but,  here,  also,  the  special  facts  and  motives  must  determine 
whether  the  third  person  is  to  be  made  wholly  responsible,  or  whether  the 
defendant's  conduct  has  so  far  induced  the  injurious  agency,  as  to  be  fairly 
the  cause  of  it.  Finallj'-,  if  the  negligent  acts  of  the  defendant  have  directly 
produced  the  damage,  and  a  fortiori,  if  actual  fraud  on  his  part,  has  done 
the  mischief,  he  is  liable  in  an  action  on  the  case. 

We  find  it  frequently  laid  down,  that  an  unpaid  bailee  is  liable  only  for 
gross  negligence.  This,  it  will  be  observed,  is  not  a  legal  term  ;  the  decla- 
ration charging  only /rowrf,  or  c«re/es5  and  negligent  conduct,  producing 
damage:  it  is  an  expression  used  by  judges  and  text-writers,  to  explain 
what  is  meant  by  the  legal  terms  used  in  the  declaration.  If  actual  fraud, 
and  malignity  of  design,  is  the  point  of  the  case,  then  gross  negligence  must 
mean,  such  wanton  carelessness  as  satisfies  the  jury  of  such  corrupt  design  ; 
but  if — as  is  more  frequently  the  case, — actual  fraud  in  fact  cannot  be 
inferred,  then  negligence  must  be  considered  gross  or  not,  according  to  the 
degree  in  which  it  is  the  cause  of  the  injury.  Nearly  all  the  confusion  and 
obscurity  which  belono-  to  the  subject  of  bailments,  have  been  occasioned  by 
the  unfortunate  introduction  of  the  words  gross  and  slight  negligence, 
which  do  not  belong  to  our  law,  and  which  convey  no  precise  idea.  The 
civil-law  distribution  and  classification  of  these  liabilities,  is  entirely  differ- 
ent from  ours:  our  law  has  conceived  of  the  legal  obligations  and  duties  of 
men,  in  relation  to  their  neighbour's  property,  and  has,  by  this  action  on 
the  case  defined  them,  with  so  much  comprehension  and  precision,  that  the 
same  principle  applies  irrespectively  of  the  seat  of  the  possession. 

The  late  case  of  Wilson  v.  Brett,  11  Meeson  v.  Welsby,  113,  forcibly 
illustrates  the  inapplicability  of  the  distinctions,  recited  by  Lord  Holt  from 
the  civil  law,  between  the  cases  where  the  bailment  is  exclusively  for  the 
benefit  of  the  bailor,  and  where  it  is  exclusively  for  the  benefit  of  the  bailee, 
or  where  it  is  for  the  joint  benefit  of  both ;  and  shows  that  in  regard  to  an 
unpaid  bailee,  the  liability  is  simply  for  negligence  under  the  circumstances 
of  the  case,  which  will  vary  with  the  skill  and  knowledge  which  the  bailee 
is  shown  to  possess;  and  Rolfe,  B.,  observes  that  he  could  see  no  differ- 
ence between  negligence  and  gross  negligence, — that  it  was  the  same  thing, 
with  the  addition  of  a  vituperative  epithet.     See  also  the  remarks  of  Parke, 


COGGS     V.     BARNARD.  243 

B.,  in  Wyld  V.  Pickford,  8  id.  443.  461,  462,  and  of  Lord  Denman,  C.  J., 
ia  Hinton  v.  Dibbin,  2  Q,.  B.,  646.  661,  as  to  tlie  want  of  an  intelligible 
distinction  between  negligence  and  gross  negligence. 

It  may  be  proper  to  note,  that  where  money  is  the  subject  of  bailment,  or 
delivery  to  an  agent,  paid  or  unpaid,  assumpsit  is  the  proper  remedy ; 
assumpsit  in  the  form  of  money  had  and  received,  usually  being  in  case  of 
money,  a  substitute  alike  for  trespass,  trover  and  case  ;  though,  as  a  substi- 
tute for  trover,  there  need  be  no  previous  demand.  See  Graves  et  al.  v. 
Ticknor,  6  New  Hampshire,  537. 

It  has  been  stated  above,  that,  in  trover,  proof  of  demand  and  refusal, 
throws  upon  the  defendant  the  burden  of  proving  that  the  property  was  lost 
or  stolen.  In  case,  the  burden  of  proving  negligence  is  on  the  plain- 
tiff. Where  the  goods  have  not  been  returned  or  delivered  by  the  defend- 
ant, the  most  convenient  way  for  the  plaintiff  to  proceed,  appears  to  be,  first, 
to  make  a  demand,  and  then  to  bring  trover  and  case :  the  demand  and 
refusal  will  cause  a  recovery  on  the  former  count,  unless  the  defendant  prove 
a  loss  or  theft;  and  then,  upon  the. latter,  the  plaintiff  will  recover  if  he 
prove  that  negligence  caused  the  loss;  but  the  burden  of  this  is  upon  him. 
In  Beckman  &  Johnson  v.  Shouse  et  al.,  5  Rawle,  179.  190,  in  assumpsit, 
against  one  liable  as  a  paid  agent,  it  is  said,  that  the  course  of  proof  is  sim- 
ilar ;  that  proof  of  the  contract  and  delivery,  puts  the  defendant  to  prove  a 
loss,  and  then  the  plaintiff  must  show  negligence ;  and  in  Clark  &  Co.  v. 
Spence,  10  Watts,  335.  337,  the  same  th^ng  is  said,  in  what  the  book  calls 
an  action  on  the  case.  This  disregard  of  the  forms  of  actions,  is  an  elegancy 
believed  to  be  peculiar  to  Pennsylvania  practice. 

The  practical  deduction  from  this  consideration  of  the  remedies  which 
the  law  has  given  against  an  unpaid  bailee,  is  this: — For  a  conversion  of 
the  goods,  he  is  liable  in  trover  :  for  an  injury  or  loss  he  is  liable  in  case  : 
and  when  the  latter  action  is  brought,  the  first  inquiry  is,  whether  upon  the 
whole  state  of  the  case  between  the  parties,  the  defendant's  conduct  can  be 
regarded  as  having  been  the  legal  cause  of  the  injury  or  loss  ;  and  where 
there  is  evidence  of  a  bad  intention,  the  chain  of  causation  ought  to  be  car- 
ried back  very  far:  the  next  inquiry  is,  whether  the  defendant  can  be 
regarded  as  fraudulently  the  cause  ;  and  any  conduct  is  fraudulent  in  law, 
which  the  defendant  might  reasonably  have  foreseen  would  produce  injury 
and  which  is  not  necessary  to  the  defendant's  enjoyment  of  his  own  rights  ; 
a  fortiori,  conduct  is  fraudulent  which  springs  from  a  bad  design. 

But,  lest  this  view  of  principles  should  be  erroneous,  and  mislead  the 
reader,  the  American  cases  are  here  briefly  appended. 

In  the  great  case  of  Foster  and  another.  Executors,  &c.  v.  the  Essex 
Bank,  17  Massachusetts,  479,  the  court  say,  that  in  case  of  a  deposit  to  be 
kept  without  reward,  "  the  bailee  will  be  answerable  only  for  gross  negli- 
gence, which  is  considered  as  equivalent  to  a  breach  of  faith,"  p.  498  ;  the 
bailor  "  shall  be  the  loser,  unless  the  person  in  whom  he  confided,  has 
shown  bad  faith,  in  exposing  the  goods  to  hazards,  to  which  he  would  not 
expose  his  own,"  p.  501  ;  "the  depositary  is  answerable,  in  case  of  loss, 
for  gross  negligence  only,  ov  fraud,  which  will  make  a  bailee  of  any  cha- 
racter answerable."  p.  507 :  and  it  might  be  added,  would  make  any  body 
liable,  whether  a  bailee  or  not.  The  late  case  of  Whitney  and  Wife  v. 
Lee,  8  Metcalf,  91,  establishes  the  same  rule.  Stanton  and  Little  v.  Bell 
&  Joiner,  2  tiawks,  145,  was  the  case  of  a  mandatary,  gratuitously  under- 


244  smith's  leading   cases. 

taking  to  act  about  certain  goods  for  the  benefit  of  the  bailor;  the  court 
below  charged,  "  that  the  defendants  were  bound  to  use  that  care  and 
diligence  which  a  prudent  and  discreet  man  would  use  relative  to  his 
affairs ;"  and  a  majority  of  the  court  held  this  to  be  erroneous,  and  said,  that 
this  rule  applied  to  a  mandatary  who  acts  for  a  reward,  and  that  the  jury 
should  have  been  instructed,  "that  the  defendants  were  only  liable  for 
fraud  or  gross  neglect,"  and  on  that  account  alone,  granted  a  new  trial. 
In  Beardslee  v.  Richardson,  14  Wendell,  25,  the  court  said,  that  a  manda- 
tary carrying  gratuitously  a  sealed  letter,  containing  money,  was  liable,  in 
case,  only  for  gross  neglect:  "The  plaintiff,"  (per  Savage,  C.  J.)  "was 
bound  to  show  that  the  money  was  lost  by  the  defendant's  negligence,  or 
could  not  be  obtained  upon  request.  Had  he  shown  a  demand  and  refusal, 
the  defendant,  1  think,  would  have  been  bound  to  account  for  the  loss,  and 
to  indemnify  the  plaintiff^  unless  he  could  show  the  property  lost  without 
fault  on  his  part,  that  is,  without  gross  negligence :"  the  meaning  of  the 
learned  chief  justice  appears  to  have  been,  that  if  the  plaintiff  could  prove 
a  conversion,  of  which  a  demand  and  refusal  would  be  prima  facie  evidence, 
he  should  recover  the  value  in  damages;  (but,  then,  according  to  Wheelock 
v.  Wheelright,  5  Massachusetts,  104,  the  action  should  be  trover;)  but  that 
if  there  were  no  conversion,  then,  in  an  action  on  the  case,  gross  neglect 
must  be  proved. — Tompkins  v.  Saltmarsh,  14  Sergeant  &  Rawle,  275,  was 
assumpsit,  against  one  who  had  gratuitously  undertaken  to  carry  a  letter 
containing  money,  which  he  never  delivered  :  the  court,  per  Duncan,  J., 
said,  that  in  such  a  case,  "  the  bailee  is  only  liable  for  gross  negligence, 
dolo  proximus,  a  practice  equal  to  a  fraud.  It  is  that  omission  of  care, 
which  even  the  most  inattentive  and  thoughtless  men,  never  fail  to  take  of 
their  own  concerns."  In  Millon  v.  Salisbury,  13  Johnson,  211,  it  was  held, 
that  the  hirer  of  a  horse  was  not  liable,  Avhen  not  proved  guilty  of  ill  treat- 
ment, or  conversion  to  another  use  ;  "  as  to  all  accidents  naturally  incident 
to  the  use  of  the  horse,  in  the  manner  contracted  for,  the  law  imposes  the 
risk  on  the  bailor."  Todd  v.  Figley,  7  Watts,  542,  is  reported  in  too  vague 
a  manner,  to  enable  us  to  judge  what  principle  as  to  the  liability  of  a  bor- 
rower is  decided  :  the  court  say,  he  was  liable  for  "an  injury  happening  to 
the  mare  even  from  slight  neglect"  on  his  part ;  and  afterwards  they  appear 
to  approve  of  the  liability  being  rested  on  the  principle  that  any  neglect 
occasioning  the  injury,  would  render  him  answerable  :  and  upon  the  whole, 
the  decisions  seems  to  be  rested  on  the  question,  whether  or  not  the  neglect 
of  the  defendant,  was  the  cause  of  the  injury.  In  Anderson  v.  Foresman, 
Wright's  Ohio,  598,  the  judge  told  the  jury,  that  one  carrying  money  with- 
out reward,  is  bound  to  lake  the  same  care  of  it  that  he  does  of  his  own  : 
but  in  Monteith  v.  Bissell's  Adm'r.  id.  411,  the  same  judge  said,  that  a 
bailee  of  money  without  reward,  is  not  liable  for  slight  neglect  but  only 
gross  neglect ;  and  that  if  he  kept  the  money  where  he  kept  his  own,  he 
was  not  liable.  See  also  McLean  v.  Rutherford,  8  Missouri,  109.  In  Tracy 
et  al.  V.  Wood,  3  Mason,  132,  the  case  of  one  gratuitously  carrying  two 
bags  of  monej^  Mr.  Justice  Story,  in  charging  the  jury  said  :  "  I  agree, 
that  in  cases  of  bailees  without  reward,  they  are  liable  only  for  gross  negli- 
gence. The  language  of  the  books  as  to  what  constitutes  gross  negligence, 
or  not,  is  sometimes  loose  and  inaccurate,  from  the  general  manner  in  which 
propositions  are  stated.     When  it  is  said,  that  gross  negligence  is  equiva- 


COGGS     V.     BARNARD.  245 

lent  to  fraud,  it  is  not  meant,  that  it  cannot  exist  without  fraud.  There  may- 
be very  gross  negligence,  in  cases  where  there  is  no  pretence  that  the  party- 
has  been  guilty  of  fraud;  though  certainly-  such  negligence  is  often  pre- 
sumptive of  fraud.  It  appears  to  me,  that  the  true  way  of  considering 
cases  of  this  nature,  is,  to  consider  whether  the  party  has  omitted  that  care 
which  bailees,  without  hire,  or  mandataries  of  ordinary  prudence,  usually 
take  of  property  of  this  nature.  If  he  has,  then  it  constitutes  a  case  of 
gross  negligence.  The  question  is  not,  whether  he  has  omitted  that  care, 
which  very  prudent  persons  usually  take  of  their  own  property,  for  the 
omission  of  that  would  be  but  slight  negligence ;  nor  whether  he  has 
omitted  that  care  which  prudent  persons  ordinarily  take  of  their  own  pro- 
perty, for  that  would  be  but  ordinary  negligence.  But  whether  there  be  a 
want  of  that  care,  which  men  of  common  sense,  however  inattentive,  usually 
take,  or  ought  to  be  presumed  to  take,  of  their  property,  for  that  is  gross 
negligence.  The  contract  of  bailees  without  reward,  is  not  merely  for  good 
faith,  but  for  such  care,  as  persons  of  common  prudence  in  their  situation 
usually  bestow  on  such  property. — If  they  omit  such  care,  it  is  gross  negli- 
gence." This  was  a  bailment  of  money,  of  which,  said  the  learned  judge, 
much  greater  care  is  always  taken,  than  of  other  things.  "He  kept  his 
own  money  in  the  same  valise,  and  took  no  better  care  of  it  than  of  the 
plaintiff's.  Still  if  the  jury  are  of  opinion,  that  he  omitted  to  take  that 
reasonable  care  of  the  gold,  which  bailees  without  reward  in  his  situation 
usually  take,  or  which  he  himself  usually  took  of  such  property,  under  such 
circumstances,  he  has  been  guilty  of  gross  negligence.  See  other  cases 
cited  in  note  to  Wilson  v.  Brett,  11  M.  &  W.  113.  116. 

It  was  observed  before,  that  the  phrases  gross  neolio-ence,  and  slisfht  negf- 
ligence,  are  not  legal  terms,  but  are  used  by  judges  to  explain  the  legal 
language  in  the  declaration  ;  and  it  would  seem,  that  unless  they  do  express 
the  common  law  notion  of  actionable  negligence,  more  clearly  and  without 
error,  they  had  better  be  disused.  Now  it  is  clear  from  the  above  cases, 
especially  the  last,  that  the  term  gross  negligence,  is  not  to  be  taken  in  its 
ordinary  and  every-day  meaning :  it  appears  from  Tracy  et  al.  v.  Wood, 
that  it  is  a  technical  and  artificial  phrase,  the  meaning  of  which  it  is  almost 
impossible  to  define  with  precision.  Tracy  et  al.  v.  Wood,  implies  that  the 
definition  of  gross  negligence,  given  in  the  cases  from  Wright's  Reports, 
and  one  of  the  definitions  given  in  Foster,  &c.  v.  The  Essex  Bank,  that 
gross  negligence  is,  the  exposing  the  property  to  hazards,  to  which  the 
defendant  would  not  expose  his  own,  is  erroneous.  But,  so  difficult  and 
perplexing  is  this  phrase,  that  the  learned  judge  in  Tracy  et  al.  v.  Wood, 
has  given  not  less  than  five  clearly  different  explanations,  or  rules  to  guide 
the  jury.  He  first  defines  it,  the  want  of  that  care  which  unpaid  bailees, 
of  ordinary  prudence,  usually  take  of  bailed  property:  then,  of  that  care, 
which  men  of  common  sense,  however  inattentive,  usually  take  of  their  own 
property :  next,  the  care  which  such  men  ought  to  be  presumed  to  take  of 
their  own  property  :  then  it  is,  the  reasonable  care  which  unpaid  bailees 
usually  take  of  bailed  property  :  and  then,  that  reasonable  care  which  he 
himself  usually  took  of  bailed  property.  Without  being  too  critical,  it  may 
certainly  be  said,  that  in  each  of  these  sentences,  a  different  rule  is  given  : 
and  that  all  of  them  are  too  vague  and  general,  to  be  capable  of  application 
by  a  jury.     It  is  believed,  that  the  common  law  principle  set  out  in  the 


246  SMITHS    LEADING    CASES. 

nature  of  the  action,  that  any  negligent  conduct  which  causes  injury  or  loss, 
or  which  satisfies  the  jury  that  there  has  been  fraud  and  collusion,  is  action- 
able, explains  itself  more  clearly,  than  these  various  definitions  explain  it. 
The  expressions  convey  so  indefinite  a  meaning,  that  we  find  Lord  Holt 
saying,  that  a  hirer  and  borrower,  are  both  liable  for  slight  negligence,  and 
Sir  W.  Jones,  and  Mr.  Justice  Story,  maintaining,  that  a  borrower  is  liable 
for  slight  negligence,  and  a  hirer  only  for  gross  negligence.  To  what  test 
are  these  differences  to  be  submitted,  and  by  what  arbiter  decided  ?  There 
is  none  but  the  form  of  the  pleadings.  The  action  against  both  is  the 
same,  and  charges  negligent  conduct  occasioning  injury  or  loss  :  from  which 
it  appears,  that  the  older  judge  is  right,  in  saying  that  the  same  degree  of 
negligence  will  make  both  liable  (with  which  Blackstone  agrees)  :  and 
also  in  saying,  that  slight  negligence,  or-any  negligence,  if  it  be  the  legal 
cause  of  the  injury  or  loss,  will  make  them  liable. 

H.  B.  W. 


*[105]         *ASHBY  V.  WHITE  ET  ALIOS. 

TRINITY.— 2  ANNiE. 

[reported   lord   RAYMOND,  938.] 

A  man  who  has  a  right  to  vote  at  an  election  for  members  of  parliament  may  maintain  an 
action  against  tiie  returning  officer  for  refusing  to  admit  his  vote,  though  his  right  was 
never  determined  in  parliament,  and  though  the  persons  for  whom  he  offered  to  vote 
were  elected. (a) 

Buckinghamshire  to  wit.  Matthias  Ashby  complains  of  William  White, 
Richard  Talbois,  William  Bell,  and  Richard  Heydon,  being  in  the  cus- 
tody of  the  marshal  of  the  Marshalsea  of  the  lord  the  king,  before  the 
king  himself,  for  that,  to  wit.  That  whereas  on  the  20th  day  of  November, 
in  the  12th  year  of  the  reign  of  the  lord  the  now  king,  a  certain  writ  of  the 
said  lord  the  now  king,  issued  out  of  the  Court  of  Chancery  of  him  the  said 
lord  the  now  king,  at  Westminster,  in  the  county  of  Middlesex,  directed  to 
the  then  sheriff  of  Buckinghamshire  aforesaid,  reciting  that  the  said  lord 
the  king,  by  the  advice  and  assent  of  his  council,  for  certain  arduous  and 
urgent  businesses  concerning  him  the  said  lord  the  king,  the  state,  and  the 
defence  of  his  realm  of  England,  and  of  the  church  of  England,  had 
ordained  his  certain  parliament  to  be  holden  at  his  city  of  Westminster,  on 

(a).  S.  C.  Salk.  19.  3  Salk.  17.  Holt,  524.  fi  Mod.  4.5.  Vide  1  Bro.  Pari.  Cas.  47.  8 
St.  Tr  89.  Somewhat  similar  to  this  action  is  that  of  Pcrring  v.  Harris,  2  Moo.  &  Rob.  .5, 
against  an  overseer  for  maliciously  omitting  a  parishioner's  name  from  the  rate,  per  quod 
she  was  unable  to  obtain  a  beer  license. 


ASH  BY     V.     WHITE     ET     ALIOS.  247 

the  6th  day  of  February,  then  next  coming-,  and  therewith  the  prelates, 
nobles,  and  peers  of  his  said  kingdom,  to  have  discourse  and  treaty,  the  said 
lord  the  now  king  commanded  the  then  sheriff  of  Buckinghamshire,  by  the 
said  writ  firmly  enjoining,  that,  having  made  the  proclamation  in  his  next 
said  county  court  after  the  receipt  of  the  same  writ  to  be  holden,  of  the  day 
and  place  aforesaid,  two  knights,  girded  with  swords,  the  most  fitting  and 
discreet  of  the  county  aforesaid,  and  of  every  city  of  that  county  two 
^citizens,  and  of  every  borough  two  burgesses  of  the  more  discreet  pit;,rv/.-| 
and  most  sufficient,  should  be  freely  and  indifferently  chosen  by  L  J 
those  whom  such  proclamation  should  concern,  according  to  the  form  of  the 
statute  thereupon  made  and  provided,  and  the  names  of  the  said  knights, 
citizens  and  burgesses,  so  to  be  chosen,  to  be  inserted  in  certain  indentures 
thereof,  to  be  made  between  him,  the  then  sheriff,  and  those  who  should  be 
concerned  at  such  election  (although  such  persons  to  be  chosen  should  be 
present  or  absent,)  and  should  cause  them  to  come  at  the  said  day  and 
place  ;  so  that  the  said  knights,  citizens  and  burgesses,  might  severally 
have  full  and  sufficient  power  for  themselves  and  the  commonalty  of  the 
county,  cities,  and  boroughs  aforesaid,  to  do  and  consent  to  those  things 
which  should  then  happen  to  be  ordained  there  of  the  common  council  of 
the  said  realm  of  him  the  said  lord  the  now  king  (by  God's  assistance,)  upon 
the  business  aforesaid  ;  so  that  for  want  of  such  power,  or  because  of  an 
improvident  election  of  the  knights,  citizens,  and  burgesses  aforesaid,  the 
said  business  rnight  not  in  any  wise  remain  undone  ;  and  should  certify, 
without  delay,  that  election  made  in  the  full  county  of  him  the  then  sheriff, 
distinctly  and  openly,  under  his  seal,  and  the  seals  of  those  who  should  be 
concerned  at  that  election,  to  the  said  lord  the  now  king,  in  his  Chancery, 
at  the  said  day  and  place  ;  sending  to  him  the  said  lord  the  king,  the  coun- 
terpart of  the  indenture  aforesaid,  sewed  to  the  same  writ,  together  with  that 
writ ;  which  said  writ,  afterwards,  and  before  the  6th  day  of  February,  in 
the  writ  aforesaid  mentioned,  to  wit,  on  the  29th  day  of  December,  in  the 
twelfth  year  abovesaid,  at  the  borough  of  Aylesbury,  in  the  said  county  of 
Bucks,  was  delivered  to  one  Robert  Weedon,  Esq.,  then  sheriff  of  the  same 
county  cf  Bucks,  to  be  executed  in  form  of  law  ;  by  virtue  of  which  said 
writ,  the  aforesaid  Robert  Weedon,  being  then  and  there  sheriff  of  the 
county  of  Bucks  aforesaid,  as  before  is  set  forth,  afterwards  and  before  the 
aforesaid  6th  day  of  February,  to  wit,  on  the  30th  day  of  December,  in  the 
12th  year  abovesaid,  at  the  borough  of  Aylesbury  aforesaid,  in  the  said 
county  of  Bucks,  made  his  certain  precept  in  writing,  under  the  seal  of  him 
the  said  Robert  Weedon,  of  his  office  of  sheriff  of  the  county  of  Bucks 
aforesaid,  directed  to  the  constables  of  the  borough  of  Aylesbury  aforesaid, 
reciting  *the  day  and  place  of  the  parliament  aforesaid  to  be  holden,  r-^-,(.y-, 
thereby  requiring  them  and  giving  to  them  in  command,  that  having  L  J 
made  proclamation  within  the  borough  aforesaid  of  the  day  and  place  in 
the  same  precept  recited,  they  should  cause  to  be  freely  and  indiflt?rently 
chosen  two  burgesses  of  that  borough,  of  the  more  discreet  and  most  suffi- 
cient, by  those  whom  such  proclamation  should  concern,  according  to  the 
form  of  the  statutes  in  such  cases  made  and  provided,  and  the  names  of  the 
said  burgesses  so  elected  (although  they  should  be  present  or  absent)  to  be 
inserted  in  certain  indentures  between  the  said  sheriff  and  those  who  should 
have  interest  in  such  election  ;  and  that  he  should  cause  them  to  come  at 


248  smith's  leading  cases. 

the  day  and  place  in  the  same  precept  recited,  so  that  the  said  burgesses 
might  have  full  and  sufficient  power  for  themselves  and  the  commonalty  of 
the  borough  aforesaid,  to  do  and  consent  to  those  things  which  should  then 
happen  to  be  ordained  there  of  the  common  council  of  the  said  realm  (by 
God's  assistance)  upon  the  business  aforesaid  ;  so  that  for  want  of  such 
power,  or  because  of  an  improvident  election  of  the  burgesses  aforesaid,  the 
said  businesses  might  not  remain  undone;  and  that  they  should,  without 
delay,  certify  the  election  to  him  the  said  then  sheriff,  sending  to  the  same 
sheriff  the  counterpart  of  the  indenture  aforesaid  annexed  to  the  said  pre- 
cept, that  he  the  said  sheriff  might  certify  the  same  to  the  said  lord  the  king 
in  his  Chancery  at  the  day  and  place  aforesaid,  which  said  precept  after- 
wards and  before  the  said  6th  day  of  February,  to  wit,  on  the  same  30th. 
day  of  December  in  the  year  abovesaid,  at  the  borough  of  Aylesbury  afore- 
said, in  the  said  county  of  Bucks,  was  delivered  to  them,  the  said  William 
White,  Richard  Talbois,  William  Bell,  and  Richard  Heydon,  then,  and  until 
after  the  return  of  the  same  writ,  being  constables  of  the  borough  of  Ayles- 
bury aforesaid,  to  be  executed  in  form  of  law  ;  to  which  the  said  William 
White,  Richard  Talbois,  William  Bell,  and  Richard  Heydon,  by  reason  of 
their  office  of  constables  of  the  borough  aforesaid,  the  execution  of  that  pre- 
cept of  right  did  then  and  there  belong  ;  by  virtue  of  which  said  precept, 
and  by  force  of  the  writ  aforesaid,  they  the  said  burgesses,  of  the  said 
borough  of  Aylesbury,  being  in  that  behalf  duly  forewarned,  afterwards 
and  before  the  6lh  day  of  February,  to  wit,  on  the  6th  day  of  January  in 
-.  the  12th  year  abovesaid,  at  the  *borough  of  Aylesbury  aforesaid, 
L  -•  before  them  the  said  William  White,  Richard  Talbois,  William 
Bell,  and  Richard  Heydon,  the  constables  aforesaid,  were  assembled  to  elect 
two  burgesses  for  the  borough,  according  to  the  exigency  of  the  Avrit  and 
precept  aforesaid,  and  during  that  assembly,  to  that  intention,  and  before 
such  two  burgesses  b}''  virtue  of  the  writ  and  precepts  aforesaid,  were  elected, 
to  wit,  on  the  day  and  year  last  abovesaid,  at  the  borough  of  Aylesbury 
aforesaid,  in  the  county  aforesaid,  he,  the  said  Matthias  Ashby,  then  and  there 
being  a  burgess  and  an  inhabitant  of  the  borough  aforesaid,  and  not  receiv- 
ing alms  there  or  any  where  else,  then  or  before,  but  being  duly  qualified 
and  entitled  to  give  his  vote  for  the  choosing  of  two  burgesses  for  the 
borough  aforesaid,  according  to  the  exigency  of  the  writ  and  precept  afore- 
said, before  them  the  said  William  White,  Richard  Talbois,  William  Bell, 
and  Richard  Heydon,  the  four  constables  of  that  borough,  to  whom  then 
and  there  it  did  duly  belong  to  take  and  allow  the  vote  of  him  the  said  Mat- 
thias Ashby,  of  and  in  the  premises,  was  ready  and  offered  to  give  his  vote 
for  choosing  Thomas  Lee,  Bart.,  and  Simon  Mayne,  Esq.,  two  burgesses  for 
that  parliament,  by  virtue  and  according  to  the  exigency  of  the  writ  and 
precept  aforesaid  ;  and  the  vote  of  him,  the  said  Matthias,  then  and  there 
of  right  ought  to  have  been  admitted  ;  and  the  aforesaid  William  White, 
Richard  Talbois,  William  Bell,  and  Richard  Heydon,  so  being  then  and 
there  constables  of  the  borough  aforesaid,  were  then  and  there  requested  to 
receive  and  allow  the  vote  of  him  the  said  Matthias  Ashby,  in  the  premises; 
nevertheless  they,  the  said  William  White,  Richard  Talbois,  William  Bell, 
and  Richard  Heydon,  being  then  and  there  constables  of  the  borough  afore- 
said, well  knowing  the  premises,  but  contriving,  and  fraudulently  and 
maliciously  intending  to  damnify  him  the  said  Matthias  Ashby,  in  this 


AS  11  BY    V.    WHITE    ET     ALIOS.  249 

behalf,  and  wholly  to  hinder  and  disappoint  him  of  his  privilege  of  and  in 
the  premises,  did  tlien  and  there  hinder  him,  the  said  Matthias  Ashby,  to 
give  his  vote  in  that  behalf,  and  did  then  and  there  absolutely  refuse  to  per- 
mit him,  the  said  Matthias  Ashby,  to  give  his  vote  for  choosing  two  bur- 
gesses for  that  borough  to  the  parliament  aforesaid,  and  did  not  receive,  nor 
did  they  allow  the  vote  of  him,  the  said  Matthias  Ashby,  for  that  election  ; 
and  two  burgesses  of  *that  borough  were  elected  for  the  parliament  p^i^q-i 
aforesaid  (he,  the  said  Matthias  Ashby,  being  excluded,  as  before  '  -^ 

is  set  forth)  without  any  vote  of  him  the  said  Matthias  Ashby,  then  and  there, 
by  virtue  of  the  writ,  and  precept  aforesaid,  to  the  enervation  of  the  afore- 
said privilege  of  him  the  said  Matthias  Ashby,  of  and  in  the  premises  afore- 
said ;  whereupon  the  said  Matthias  Ashby  saith  that  he  is  injured,  and  hath 
sustained  damage  to  the  value  of  200/.,  and  thereupon  he  brings  suit,  &c. 
Not  guilty.     Verdict  for  the  plaintifT. 

Note Judgment  was  arrested  in  B.  R.  by  three  judges  against  Holt. 

But  on  the  14th  of  January,  1703,  this  judgment  was  reversed  in  the 
House  of  Lords,  and  judgment  given  for  the  plaintiff  by  fifty  lords  against 
sixteen. 

*  After  a  verdict  for  the  plaintiff  on  not  guilty  pleaded,  it  was  moved  in 
arrest  of  judgment  by  Serjeant  Whilaker,  that  this  action  was  not  maintain- 
able. And,  for  the  difficulty,  it  was  ordered  to  stand  in  the  paper,  and  was 
argued  Trin.  1  Q,,  Anne  by  Mr.  Weld  and  Mr.  Montague  for  the  defend- 
ants, and  this  term  judgment  was  given  against  the  plaintiff,  by  the  opinion 
of  Powell,  Powys,  and  Gould,  justices,  Holt,  chief  justice,  being  of  opinion 
for  the  plaintiff. 

Gould,  J. — I  am  of  opinion,  that  judgment  ought  to  be  given  in  this  case 
for  the  defendants,  and  I  cannot  by  any  means  be  reconciled  to  give  my 
judgment  for  the  plaintiff,  for  there  are  no  footsteps  to  warrant  such  an 
opinion,  but  only  a  single  case.  I  am  of  opinion,  that  this  action  is  not 
maintainable  for  these  four  reasons  :  first,  because  the  defendants  are  judges 
of  the  thing,  and  act  herein  as  judges  :  secondly,  because  it  is  a  parliament- 
ary matter,  with  which  we  have  nothing  to  do:  thirdly,  the  plaintiff's  pri- 
vilege of  voting  is  not  a  matter  of  property  or  profit,  so  that  the  hindrance 
of  it  is  merely  damnum  sine  injuria :  fourthly,  it  relates  to  the  public,  and 
is  a  popular  offence. 

As  to  the  first,  the  king's  writ  constitutes  the  defendant  a  judge  in  this 
case,  and  gives  him  power  to  allow  or  disallow  the  plaintiff's  vote.  For 
this  reason  it  is,  that  no  action  lies  against  a  sheriff  for  taking  insufficient 
bail,  because  he  is  the  judge  of  their  sufficiency.  So  in  the  case  of  Med- 
calf  V.  Hodgson,  Hutt.  120,  and  their  sufficiency  is  not  traversable,  1  Lev. 
86,  Bentley  v.  Hore.  Upon  the  same  reason  the  resolution  of  the  court  is 
founded  in  the  case  of  Hammond  v.  Howell,  2  Mod.  218,  that  no(o)  .  _-, 
action  lies  *against  a  man  for  what  he  does  as  a  judge.  9  Hen.  6,  L  J 
60,  p.  9. 

2.  This  is  a  parliamentary  matter,  and  the  parliament  is  to  judge  whether 
the  plaintifl^had  a  right  of  electing  or  not ;  for  it  may  be  a  dispute,  whether 
the  right  of  election  be  in  a  select  number,  or  in  the  populace  ;  and  this  is 
proper  for  the  parliament  to  determine,  and  not  for  us  :  and  if  we  should 
take  upon  us  to  determine,  that  he  has  a  right  to  vote,  and  the  parliament 

(o)  Vide  L.  Ray.  454. 


250  SMITH     SLEADINGCASES. 

be  of  opinion  that  he  has  none,  an  inconvenience  would  follow  from  contrary 
judgments.  So  in  2  Vent.  37,  Onslow's  case,  it  is  adjudged,  that  no(6) 
action  lies  for  a  double  return  of  members  to  serve  in  parliament,  'i  he 
resolution  of  the  King's  Bench  in  the  case  of  Barnardiston  v.  Soame,  2 
Lev.  114,  was  given  on  this  particular  reason,  that  there  had  been  a  deters 
mination  before  in  parliament  in  favour  of  the  plaintiff)  And  Hale  said,  we 
pursue  the  judgment  of  the  parliament  ;  but  the  plaintifi' would  have  been 
too  early,  if  he  had  come  before  ;  and  yet  that  judgment  was  reversed. 

3.  It  is  not  any  matter  of  profit,  either  in  presenti  or  in  fuluro.  To  raise 
an  action  upon  the  case,  both  damage  and  injury  must  concur,  as  is  the  case 
of  19  Hen.  G,  44,  cited  Hob.  2&7.  If  a  man  forge  a  bond  in  another's 
name,  no  action  upon  the  case  lies,  till  the  bond  be  put  in  suit  against  the 
party  ;  so  here,  it  may  be  this  refusal  of  the  plaintiff's  vote  may  be  no 
injury  to  him,  according  as  the  parliament  shall  decide  the  matter  ;  for  they 
may  adjudge,  that  he  had  no  right  to  vote,  whereby  it  will  appear,  the  plain- 
tiff" was  mistaken  in  his  opinion  as  to  his  right  of  election,  and  consequently 
has  sustained  no  injury  by  the  defendant's  denying  to  take  his  vote. 

4.  It  is  a  matter  which  relates  to  the  public,  and  is  a  kind  of  popular 
offence,  and  therefore  no  action  is  given  to  the  party;  for  by  the  same  rea- 
son one  man  may  bring  an  action,  a  hundred  may,  and  so  actions  infinite 
for  one  default ;  which  the  law  will  not  allow,  as  is  agreed  in  Williams's 
case,  5  Co.  73,  a.  and  104,  b.  Boulton's  case.  Perhaps,  in  this  case  after 
the  parliament  have  adjudged  the  plaintiff"  has  a  right  of  voting,  an  infor- 
mation may  lie  against  the  sheriff"  for  his  refusal  to  receive  it.  So  the  case 
of  Ford  V.  Hoskins,  2  Cro.  338  ;  2  Brownl.   194.     Such  an  action  as  this 

^,,,-,  was  never  brought  before,  and  therefore  shall  '^be  taken  not  to  lie, 
-*  though  that  be  not  a  conclusive  reason.  As  to  the  case  of  Sterling 
V.  Turner,  2  Lev.  50,  2  Vent.  50,  where  an  action  was  brought  by  the  plain- 
tiff, who  was  candidate  for  the  place  of  bridge-master  of  London,  for  refusing 
him  a  poll,  and  adjudged  maintainable,  there  is  a  loss  of  a  profitable  place. 
So  the  case  of  Herring  v.  Finch,  2  Lev.  250,  where  the  plaintiff"  brought 
an  action  on  the  case  against  the  defendant,  for  that  the  plaintiff"  being  a 
freeman,  who  had  a  voice  in  the  election  of  mayor,  the  defendant  being  the 
present  mayor  refused  to  admit  his  voice  ;  in  that  case  the  defendant  is 
guilty  of  a  breach  of  his  faith  ;  and  in  both  these  cases  the  plaintiff  has  no 
"other  remedy,  either  in  parliament  o,r  any  where  else,  as  the  plaintiff  in  our 
case  has.  So  that  I  am  of  opinion,  that  judgment  ought  to  be  given  for  the 
defendant  upon  the  merits.  But  upon  this  declaration  the  plaintiff  cannot 
maintain  any  action,  for  the  plaintiff  does  not  allege  in  his  count,  that  the 
two  burgesses  elected  were  returned,  and  if  they  were  never  returned,  there 
is  no  damage  to  the  plaintiff".  See  2  Bulst.  265.  But  I  do  not  rely  upon 
this  fault  in  the  declaration. 

Poivys,  J. — I  am  of  the  same  opinion,  that  no  action  lies  against  the 
defendant.  1.  Because  the  defendant  as  bailiff  is  quasi  a  judge,  and  has 
a  distinguishing  power  either  to  receive  or  refuse  the  votes  of  such  as  come 
to  vote,  and  does  preside  in  this  affair  at  the  time  of  election ;  though  his 
determination  be  not  conclusive,  but  subject  to  the  judgment  of  the  parlia- 
ment, where  the  plainlilf  must  take  his  remedy. 

(h)  D.  cont.  1  Wils.  127. 


ASHBY    V.    WHITE     ET    ALIOS.  251 

2?  If  the  defendant  misbehave  himself  in  his  office  by  making  a  false  or 
double  return,  an  action  lies  against  him  for  it  on  the  late  statute  7  &  8  W. 
3,  c.  7,  and  therein  all  this  matter  of  refusing  the  plaintiff's  vote  is  com- 
prised, and  all  the  special  matter  is  scanned  in  that  action.  And  if  you 
allow  the  plaintiff  to  maintain  an  action  for  this  matter,  then  every  elector 
may  bring  his  action,  and  so  the  officer  shall  be  loaded  with  a  number  of 
actions,  that  may  ruin  him;  and  he  may  follow  one  law  suit,  though  he 
may  not  be  able  to  follow  many.  These  actions  proceed  from  heat,  I  will 
not  call  it  revenge  ;  and  it  is  not  like  splitting  of  actions,  scilicet,  of  one 
cause  of  action  into  many,  but  the  causes  of  action  are  several,  and  the  court 
cannot  unite  them,  but  *A.,  B.,  C,  D.,  E.,  and  a  hundred  more,  r-^i-io-i 
may  at  this  rate  bring  actions.  L         -^ 

3.  There  is  avast  intricacy  in  determining  the  right  of  electors,  and. 
there  is  a  variety,  and  a  different  manner  and  right  of  election  in  every 
borough  almost.  As  in  some  boroughs  every  potwaller  has  a  right  to  vote, 
in  some  residents  only  vote,  and  in  others  the  outlying  burgesses  that  live  a 
hundred  miles  off;  nay,  I  know  Ludlow,  a  borough,  where  all  the  bur- 
gesses' daughters'  husbands  have  a  right  to  vote.  But  now  all  this  matter 
is  comprised  in  an  action  against  the  officer  for  a  false  return.  But  it  is 
objected,  that  by  the  law  of  England,  every  one  who  suffers  a  wrong  has  a 
remedy ;  and  here  is  a  privilege  lost,  and  shall  not  the  plaintiff  have  a 
remedy  ?  To  that  I  answer,  first,  it  is  not  an  injury,  properly  speaking  ;  it 
]s  not  damnum,  for  the  plaintiff  does  not  lose  his  privilege  by  this  refusal, 
for  when  the  matter  comes  before  the  committee  of  elections,  the  plaintiff's 
vote  will  be  allowed  as  a  good  vote  ;  and  so  in  an  action  upon  the  case  by  one 
of  the  candidates  for  a  false  return,  this  tender  of  his  vote  by  the  plaintiff 
shall  be  allowed  as  much  as  if  it  had  been  given  actually  and  received. 
And  if  this  refusal  of  the  plaintiff's  vote  be  an  injury,  it  is  of  so  small  and 
little  consideration  in  the  law,  that  no  action  will  lie  for  it ;  it  is  one  of  those 
things  within  the  maxim  de  minimis  non'curat  lex.  In  the  case  of  Ford  v.  Hos- 
kins,  2  Cro.  368,  Mod.  833,  2  Bulstr.  336,  1  Roll.  Rep.  125,  where  an  action 
is  brought  against  the  lord  of  a  copyhold  manor,  for  refusing  to  accept  one 
named  as  successor  for  life  by  the  preceding  tenant  for  life,  according  to  the 
custom,  there  the  plaintiff  sufiers  an  injury,  and  yet  it  is  adjudged  that  no 
action  lies.  The  late  statute  7  &  8  W.  3,  c.  7,  gives  an  action  against  the 
officer  for  a  misfeasance  to  the  party  grieved,  i.  e.  to  the  candidate,  who  is 
to  have  his  vote;  so  that  by  the  judgment  of  the  parliament  he  cannot  have 
any  action.  Before  the  statute  of  23  Hen.  7,  no(a)  action  lay  for  the  candi- 
date, who  was  the  party  aggrieved,  against  the  officer,  for  a  false  return, 
because  it  related  to  parliamentary  matters,  as  is  adjudged  3  Lev.  29,  30, 
Onslow  V.  Rapley,  and  yet  he  had  an  injury;  and  till  the  7  &  8  \V.  3, 
no(6)  action  lay  for  the  candidate  against  the  officer  for  a  double  return  as 
is  adjudged  in  the  same  *case,  3  Lev.  29,  2  Ventr.  37,  and  yet  he  , 
suffered  an  injury  thereby ;  a  fortiori  no  action  shall  lie  for  the  plain-  L  J 
tiffin  this  case. 

4.  This  action  is  not  maintainable  for  another  reason,  which  I  think  is  a 
weighty  one,  viz.,  this  action  is  prim?e  impressionis  :  never  the  like  action 
was  brought  before,  and  therefore  as(c)  Littleton,  s.  108,  uses  it  proves  that 

(a)  D.  cont.  1  Wils.  127.  {!>)  D.  cont.  1  Wils.  127. 

(c)  Vide  Co.  Litt.  81,  b.     13  Ed.  n.  2. 


252  smith's   l  e  ad  in  g   c  ase  s. 

no  action  lay  on  the  statute  ofMerton,  20  Hen.  3,  c.  6,  si  parentes  conquer- 
antur,  for  if  it  liad  lain,  it  would  have  sometimes  been  put  in  use  ;  so  here. 
So  in  the  case  of  Lord  Say  and  Seale  v.  Stephens,  Cro.  142,  for  the  law  is 
not  apt  to  catch  at  actions.  It  is  agreed  by  the  consent  of  all  ages,  that 
no((/)  action  lay  at  common  law  against  the  officer  for  a  double  return;  and 
yet  in  one  year,  viz.,  1641,  there  were  no  less  than  seventy  double  returns, 
and  yet  they  made  no  act  to  help  it,  though  the  parliament  could  not  be  mis- 
conusant  of  the  matter. 

5.  Another  reason  against  the  action  is,  that  the  determination  of  this 
matter  is  particularly  reserved  to  the  parliament,  as  a  matter  properly  conu- 
sable  by  them;  and  to  them  it  belongs  to  determine  the  fundamental  rights  of 
their  house,  and  of  the  constituent  parts  of  it,  the  members :  and  the  courts 
of  Westminster  shall  not  tell  them  who  shall  sit  there.  Besides  we  are  not 
acquainted  with  the  learning  of  elections  ;  and  there  is  a  particular  cunning 
in  it  not  known  to  us,  nor  do  we  go  by  the  same  rules,  and  they  often  deter- 
mine contrary  to  our  opinion  without  doors.  The  late  statute,  which  enacts 
that  the  last  determination  of  the  house  as  to  the  right  of  election  shall  be  a 
rule  to  the  judges  in  the  trial  of  any  cause,  is  a  declaration  of  their  power;  and 
the  path  the  judges  are  to  walk  in  are  chalked  out  to  them,  so  that  they  are 
not  left  to  use  their  own  judgment ;  but  the  determination  of  the  house  is  to 
be  the  rule  of  law  to  us,  and  we  are  not  to  examine  beyond  that.  Suppose 
in  this  action  we  should  adjudge  one  way,  and  after  in  parliament  it  should 
be  determined  another  way  ;  or  suppose  a  judge  of  nisi  prius,  before  whom 
the  cause  comes  to  be  tried,  should  say,  "  I  am  not  bound  by  the  rule  of  the 
last  determination  in  parliament  in  this  action,  for  this  is  another  sort  of 
action,  not  within  the  meaning  of  the  statute;"  these  things  would  be  of  ill 
consequence. 

r  -ii^-y  6.  Another  reason  against  this  action  is,  that  if  we  should  *allow 
■-  -^  this  action  to  lie  for  the  plaintiff,  a  fortiori,  we  must  allow  an  action 
to  be  maintainable  for  the  candidates  against  the  defendant  for  the  same 
refusal ;  for  the  candidates  have  both  damnum  et  injuriam,  and  are  the 
parties  aggrieved ;  and  if  we  should  allow  that,  we  shall  multiply  actions 
upon  the  officers,  at  the  suit  of  the  candidates,  and  every  particular  elector 
too ;  so  that  men  will  be  thereby  deterred  from  venturing  to  act  in  such 
offices,  when  the  acting  therein  becomes  so  perilous  to  them  and  their 
families.  I  will  not  insist  upon  the  exceptions  to  the  declaration,  but  give 
my  opinion  upon  the  merits.  I  think  there  is  a  sufficient  allegation  in  the 
count  of  the  return  of  the  election,  especially  after  a  verdict.  Nor  shall  I 
insist  that  it  does  not  appear  in  the  declaration  how  near  the  party  was  to 
be  chosen ;  nor  that  this  action  is  brought  merely  for  a  possibility  ;  for  this  is 
an  action  for  a  personal  injury  ;  and  the  plaintiff  might  give  his  vote  for 
which  he  pleased,  either  the  candidate  that  had  fewer  or  more  voices  ;  or 
he  might  give  his  vote  for  one  who  had  no  other  burgess's  voice  but  the 
plaintiff's  own  ;  for  the  plaintiff,  in  those  cases,  is  deprived  as  much  of  his 
privilege  as  if  the  person  for  whom  he  voted  was  nearest  to  be  chosen.  But 
it  has  been  objected,  that  the  defendant  should  not  have  absolutely  refused 
to  receive  the  plaintiff's  vote,  but  should  have  reserved  it  for  scrutiny,  and 
should  have  admitted  it  de  bene  esse.  To  that  I  answer  ;  he  might  indeed 
have  done  so ;  but  he  was  not  obliged  to  do  it,  for  the  officer  is  supposed 

(rf)  D.  cont.  1  Wils,  127. 


ASHBY     V.     WHITE     ET     ALIOS. 


253 


to  know  every  man's  right  and  pretence  of  election,  and  commonly  the 
weaker  party  are  for  bringing  in  new  votes,  and  devising  new  contrivances  ; 
but  the  officer  ought  to  disallow  them  at  first,  and  not  to  give  so  much  coun- 
tenance  to  such  a  practice  as   to   reserve  it  for  a  scrutiny.     As  here  in 
Westminster  Hall,  when  a  matter  of  law  comes  before  us,  if  it  be  a  clear 
case,  we  may  give  judgment  in  it  on  the  first  argument,  and  it  will  be  a 
good   iudo-ment,  although  it  be  usual  to  hear  several  arguments,      ihe 
objection  of  weight  is  the  resolution  between  Sterling  and  Turner,  2  Lev. 
50.     Hale  said  that  it  was  a  good  precedent ;  and  the  case  of  Herring  and 
Finch,  2  Lev.  250,  though  as  to  that  case  it  v/as  not  adjudged  upon  the 
matter  of  law  but  went  off  upon  a  point  of  evidence,  yet  I  will  admit  the 
action  to  lie  for  the  plaintiff  in  those  cases,  but  they  do  not  at  all  relate  to 
the  parliament,  but  are  matters  of  custom  merely  relating  to  the  government 
of  the  city,  *and  are  properly  determinable  at  common  law.     And  p^jj^-. 
although  it  may  be  said,  that  this  case  also  relates  to  the  govern-  L 
ment  of  the  town,  so  does  a  public  nuisance  in  a  highway  ;  but  if  a  parti- 
cular person  receive  an  injury,  he  may  have  his  action  ;  but  that  does  not 
relate  to  the  parliament  as  this  matter  does ;  and  the  whole  case  here  turns 
upon  that,  viz.  its  being  a  parliamentary  matter.     If  we  should  admit  this 
action  to  lie,  we  shall  have  work  enough  in  Westminster  Hall,  brought  in 
by  a  side-wind ;  nay,  so  much,  that  we  shall  even  be  glad  to  petition  the 
parhament  to  take  this  power  away  from  us.     Besides,  the  judgment  here 
cannot  be  called  properly  a  determination  ;  it  will  only  be  a  litigation  ;  for 
our  judgment  cannot  be  cited  as  an  autliority  in  parliament,  nor  will  the 
parliament  mind  it,  or  be  bound  up  by  it,  for  they  themselves  are  not  bound 
even  by  their  own  determination,(a)  but  may  determine  contrary  to  it, 
.  thouo-h  that  be  a  rule  upon  the  courts  of  Westminster.     But  it  has  been 
objected  that  this  is  no  determination  of  the  election  in  this  judgment,  but 
only  of  a  particular  injury.     To  that  I  answer,  it  will  be  in  consequence  of 
a  determination  of  the  election  ;  for  if  the  plaintiff  had  a  right  to  vote,  then 
this  action  is  maintainable  ;  if  he  has  no  right,  then  he  can  have  no  action  ; 
and  by  consequence,  twenty  others  may  have  a  right  to  vote,  and  the  election 
may  turn  upon  this  single  vote  ;  and  his  right  of  voting  is  as  much  parlia- 
mentary as  the  whole  election,  and  may  as  much  entangle  the  case.     It  is 
said  in  Onslow's  case,  2  Vent.  37,  that  the  courts  at  Westminster  must  not 
enlarge  their  jurisdiction  in  these  matters,  further  that  the  statute  gives 
them;  and  indeed  it  is  a  happiness  to  us,  that  we  are  so  far  disengaged 
from  the  heats  which  attend  elections.     Our  business  is,  to  determine  of 
meum  and  tuum,  where  the  heats  do  not  run  so  high  as  in  things  belonging 
to  the  leo-islature  ;  therefore,  this  being  an   unprecedented  case,  I  shall 
conclude  with  a  saying  of  my  Lord  Coke,  2  Bulst.  338  :  Omnis  innovatio 
plus  novitale  perturbat  quam  uhitate  prodest. 

Powell,  J. I  am  of  the  same  opinion,  that  the  judgment  ought  to  be 

arrested.  '  As  to  the  novelty  of  this  action,  I  think  it  no  argument  against 
the  action  ;  for  there  have  been  actions  on  the  case  brought  that  had  never 
been  brought  before,  but  had  their  beginning  of  late  years  ;  and  *we  p^ug-j 
must  judge  upon  the  same  reason  as  other  cases  have  been  deter- 
mined by.     I  do  not  agree  with  my  brothers  upon  their  first  reason,  that 

(o)  Vide  2  G.  2,  c.  24,  s.  4.     1  Dougl.  on  Elections,  18. 


254  smith's   leading   cases. 

the  defendant  is  a  judge.  I  do  not  understand  what  my  brother  Poivys 
means  by  saying  he  is  quasi  a  judge:  surely  he  must  be  a  judge  or  no 
judge.  The  bailiff  is  not  a  judge,  but  only  an  officer  or  minister  to  execute 
the  precept.  But  I  agree  with  them  in  their  other  reasons  to  give  judg- 
ment against  the  plaintiff';  and  chiefly,  because  in  this  action  there  does 
not  appear  such  an  injury  or  damage  as  is  necessary  to  maintain  an  action 
on  the  case.  An  injury  must  have  relation  to  some  privilege  the  party  has. 
The  case  of  Turner  and  Sterling,  2  Lev.  50,  is  adjudged  upon  a  particular 
reason ;  for  the  defendant,  by  refusing  him  the  poll,  deprived  him  of  the 
means  of  knowing  whether  he  had  a  right  or  not.  If  cestuy  que  use  desires 
the  feoffees  to  make  a  feoffinent  over  to  another,  and  they  refuse,  no  action 
upon  the  case  lies  against  them  for  this  refusal.  And  in  the  case  of 
Ford  against  Hoskins,  2  Bulstr.  337,  2  Cro.  368,  it  is  resolved,  that  no 
action  lies  for  the  nominee  against  the  lord,  for  refusing  to  keep  a  court, 
and  to  admit  him  ;t  yet  this  is  a  hard  case,  for  the  party  is  thereby  deprived 
of  the  means  of  coming  to  his  right.  But  this  case  differs  from  the  case  of 
Sterling  v.  Turner;  for  the  party  hath  a  known  remedy  in  chancery  to 
compel  the  lord  to  hold  a  court  and  admit  him,  but  the  other  hath  no 
remedy  against  the  mayor  but  an  action.  Here  is  no  injury  to  the  plaintiff; 
for  though  he  has  alleged,  in  his  declaration,  that  he  had  a  right  to  vote, 
and  was  hindered  of  it  by  the  defendant,  yet  that  does  not  give  him  a  right, 
unless  the  finding  thereof  by  the  jury  do  confer  such  right;  but  that  can- 
not be  so,  for  the  jury  cannot  judge  of  this  right  in  the  first  instance,  because 
it  is  a  right  properly  determinable  in  parliament.  The  parliament  have  a 
peculiar  right  to  examine  the  due  election  of  their  members,  which  is  to 
determine  whether  they  are  elected  by  proper  electors,  such  as  have  a  right 
to  elect ;  for  the  right  of  voting  is  the  great  difficulty  in  the  determination 
of  the  due  election,  and  belongs  to  the  parliament  to  decide.  But  it  is 
objected,  admitting  the  plaintiff  had  a  right  to  vote,  and  was  deprived  of  it, 
shall  he  have  no  remedy?  To  that  I  answer,  he  shall  have  a  remedy  in 
proper  time  ;  but  the  plaintiff  here  comes  too  soon  ;  he  shall  have  a  remedy 
r*117"l  ^^  *action  after  the  parliament  had  determined  that  he  had  a  right, 
L  -^  but  not  before.  This  is  not  such  a  right,  the  deprivation  whereof 
will  make  an  injury,  till  it  be  determined  in  parliament.  But  the  plaintiff' 
has  a  proper  remedy,  by  petition  to  the  parliament  setting  forth  his  case ; 
and  after  the  parliament  have  adjudged  that  he  had  a  right-of  voting,  he 
shall  have  an  action  at  law  to  recover  damages,  when  his  right  is  so  fixed 
and  settled.  The  opinion  of  my  Lord  Hobart  in  the  case  of  Sir  William 
Elvis  and  the  Archbishop  of  York,  Hob.  317,  318,  and  the  reason  of  that 
opinion,  comes  very  near  to  the  present  case  :  That  if  the  church  be  liti- 
gious, and  two  clerks  be  presented  to  the  ordinary,  and  he  award  a  jure 
patronatust  to  inquire  which  patron  has  the  right,  and  the  inquest  find  for 
one,  and  yet  the  ordinary  receive  the  clerk  of  the  other,  contrary  to  the 
finding  of  the  jury,  in  that  ease  if  the  other  patron  bring  his  quare  impedit 

t  But  he  may  have  a  mandamus.  Rex  v.  Lord  of  the  Manor  of  Hendon,  2  T.  R.  484; 
Rex  V.  Coggan,  6  East,  431.  And  so  may  the  heir.  Rex  v.  Masters'  of  Brewers'  Co.  3  B. 
&  C.  17-2  ;  though,  in  Rex  v.  Bennett,  2  T.  R.  197,  it  has  been  held  otherwise.  But  where 
the  heir's  title  is  clearly  barred  by  lapse  of  time,  a  mandamus  will  not  be  granted  to  admit 
him,  for  he  may  bring  ejectment  without.     R.  v.  Agardsley,  5  Dowl.  17, 

X  See  the  nature  of  this  proceeding  explained,  3  Bl.  Comm.  246. 


ASHBY     V.     WHITE     ET     ALIOS.  255 

against  the  usurper  and  his  incumbent,  not  naming  the  bishop,  and  proves 
his  title,  he  may  afterwards  have  an  action  upon  the  case  against  the  ordi- 
nary, for  that  wilful  wrong,  delay,  and  trouble,  that  he  hath  put  him  to ; 
and  he  shall  recover  costs  and  damages,  not  in  respect  of  the  value  of  the 
church  (for  there  are  no  damages  for  that  by  the  common  law,  but  by  West. 
2,  13  Ed.  1,  St.  1,  c.  5,  s.  3,)  but  for  the  other  respects  before  mentioned. 
But  if  he  name  the  ordinary  in   the  quare  impedit,  he  can  have  no  other 
action  of  the  case ;  neither  shall  he  have  such  action   upon  the  case  before 
he  hath  tried  his  title  in  a  proper  action,  and  against  the  proper  parties.  So 
that  in  that  case,  though  the  patron's  fight,  being  found  by^the  jury  on  the 
jure  patronatus,  is  in  some  measure  determined,  yet  he  shall  not  maintain 
an  action  upon  the  case  against  the  ordinary,  but  he  must  first  prove  his 
title  in  a  proper  manner  by  a  quare  impedit,  and  thereby  prove  the  ordi- 
nary a  disturber ;  and  after   that   he  may   bring  his   action  on  the  case, 
against  the  ordinary  for  his  damages.     Where  the  party  has  no  possibility 
of  settling  his  right,  as  in  the  case  of  Sterling  and  Turner,  there  he  shall 
maintain   his   action   for  the   disturbance  before  his  right  be  settled;  but 
where  he  has  a  proper  method,  as  in   our  case,  he   shall   not   maintain  an 
action  till  his  right  be  determined  ;  and  the  reason  of  this  difference  is  very 
strong,  because  of  the  inconveniences  of  contrary  determinations  upon  the 
several  *actions,  or  of  the   different  judgments   by  the   House  of  p^j^g-i 
Commons,  and  the  judges  at  common  law:  for  the  house  may  be  L         J 
of  opinion  that  the  plaintiff"  has  a  right  to  vote,  and  yet  the  judges  may  be 
of  opinion  upon  the  action  that  he  hath  none,  and  give  judgment  against 
him  ;  and  even  though  he  has  a  right,  he  will  have  no  remedy  ;  et  e  con- 
verso.     But  this  difl^^rence  of  opinions  will  be  prevented  by  such  previous 
application  to  the  house  before  any  action  brought.     Besides,  in  this  case, 
here  is  not  a  damage  upon  which  this  action  is  maintainable ;  for,  to  main- 
tain an  action  upon  the  case,  there  must  be  either  a  real  damage,  or  a  pos- 
sibility of  a  real  damage,  and  not  merely  a  damage  in  opinion,  or  conse- 
quence of  law.     For  a  possibility  of  a  damage,  as  an  action  upon  the  case, 
lies  for  the  owner  of  an  ancient  market,  for  erecting  a  new  market  near 
his  :  and  yet  perhaps  the  cattle  that  come  to  the  old  market  might  not  be  sold, 
and  so  no  toll  due  ;  and  consequently  no  real  damage  ;  but  there  is  a  possi- 
bility of  damage.     But  in  our  case  there  is  no  possibility  of  a  damage.     It 
is  laid  in  the  declaration,  that  the  defendant  obstructed  him  from  giving  his 
vote  ;  but  that  is  too  general,  without  showing  the  manner  how  he  obstruct- 
ed him,  as  that  the   defendant  kept  him  out  of  the  usual  place  where  the 
votes  are  taken.     The  plaintiff' shows  no  damage  in  his  count,  and  the  ver- 
dict will  not  supply  it,  for  the  plaintiff"  ought  always  to  allege  a  damage,  as 
in  an  action  upon  the  case  brought  against  the  lessee  by  him  in  the  rever- 
sion, for  refusing  to  permit  him  to  enter  to  view  waste,  it  would  not  be 
sufficient  to  allege  thus  generally,  that  the  defendant  obstructed  him,  &c. 
It  is  laid  here,  that  the  defendants  ipsum  the  plaintiff  ad  sufTragium  suum 
dare  obstruxerunt,  et  penitus  recnsaverunt :  I  do  not  know  what  that  means 
in  this  case.     Indeed,  it  is  a  sufficient  description  of  a  disseisin  of  a  rent- 
seek  ;  but  if  the   plaintiff"  gives  his  vote  for  a  candidate,  that  is  as  eff'ectual 
as  if  the  officer  writ  it  down,  for  it  is  his  vote  by  the  giving  of  it,  and  the 
officer  cannot  hinder  him  of  it,  and  on  a  poll  it  will  be  a   good  vote,  and 
must  be  allowed,  and  so  there  is  no  wrong  done  to  the  plaintiff",  for  his  vote 


256  smith's   leading   cases. 

was  a  good  vote  notwithstanding  what  the  defendant  did.  Besides,  the 
plaintiffcan  make  no  profit  of  his  vote  ;  and  it  is  like  the  case  of  a  quare 
impedit,  in  which  the  plaintiff  at  common  law  recovered  no  damages, 
r*llQl  '^^^^"s^  ^^  ought  not  to  sell  the  presentation,  and  so  could  *make 
L  J  no  profit  of  it.  So  here,  for  it  would  be  criminal  for  the  plaintiff 
to  sell  his  vote.  Perhaps  the  putting  the  plaintiff  to  trouble  and  charge, 
to  maintain  and  vindicate  his  right  of  voting,  might  be  sufficient  damage  to 
maintain  an  action  on  the  case ;  but  as  our  case  is,  I  cannot  see  that  the 
plaintiff  has  received  any  damage.  Great  inconveniences  do  attend  the 
the  allowance  of  this  action,  as  my  brothers  have  said  ;  as  that  it  will  occa- 
sion a  multiplicity  of  actions,  and  for  that  reason  it  is,  that  the  law  gives 
no  action  to  a  private  person  for  a  public  nuisance,  for  there  is  a  remedy  by 
indictment  to  redress  it.  So  here  the  plaintiff  has  a  remedy  in  parliament. 
As  to  the  case  of  Westbury  v.  Powell,  Co.  Lit.  50,  a,  where  the  inhabitants 
of  Southwark  had  a  watering  place  for  their  cattle  by  custom,  which  was 
stopped  up,  there  any  inhabitant  might  have  an  action,  because  there  was 
no  other  remedy  by  presentment  or  the  like  ;  but  if  it  had  been  a  nuisance 
presentable,  no(a)  action  would  have  lain.  So  in  the  case  of  Sterling  and 
Turner,  the  party  had  no  other  remedy.  So  in  the  case  of  Herring  and 
Finch,  which  is  a  strong  case  ;  and  I  do  not  know  whether  an  action  will 
lie  in  that  case,  for  refusing  to  admit  his  voice  to  the  election  of  a  mayor; 
but  there  the  plaintiff  has  no  other  remedy,  nor  other  way  to  settle  his  right. 
If  we  should  adjudge  that  this  action  lies,  it  will  be  dangerous  to  execute 
any  office  of  this  nature,  and  will  deter  men  from  undertaking  public  offices, 
which  will  be  a  thing  of  ill  consequence.  I  am  of  opinion  upon  the  whole 
matter,  that  after  a  determination  in  the  parliament  for  the  plaintiff's  right, 
the  trouble  and  charge  of  vindicating  it  will  maintain  an  action,  but  in  this 
case  no  action  lies,  and  therefore  the  judgment  otxght  to  be  arrested. 

jK)//,  Chief  Justice. — The  single  question  in  this  case^  is.  Whether,  if  a 
free  burgess  of  a  corporation,  who  has  an  undoubted  right  to  give  his  vote  in 
the  election  of  a  burgess  to  serve  in  parliament,  be  refused  and  hindered  to 
give  it  by  the  officer,  if  an  action  on  the  case  will  lie  against  such  officer  ? 

I  am  of  opinion  that  judgment  ought  to  be  given  in  this  case  for  the 
plaintiff.  My  brothers  differ  from  me  in  opinion  ;  and  they  all  differ  from 
one  another  in  the  reasons  of  their  opinion  ;  but  notwithstanding  their 
opinion,  I  think  the  plaintiff  ought  to  recover,  and  that  this  action  is  well 
r*i9n"i  niaintainable  *and  ought  to  lie.  I  will  consider  their  reasons.  My 
L  -'  brother  Gould  thinks  no  action  will  lie  against  the  defendant, 
because,  as  he  says,  he  is  a  judge  ;  my  brother  Powys  indeed  says,  he  is 
no  judge,  but  quasi  a  judge  ;  but  my  brother  Powell  is  of  opinion,  that  the 
defendant  is  neither  a  judge,  nor  any  thing  like  a  judge,  and  that  is  true  : 
for  the  defendant  is  only  an  officer  to  execute  the  precept,  i.  e.  only  to  give 
notice  to  the  electors  of  the  time  and  place  of  election,  and  to  assemble  them 
together  in  order  to  elect,  and  upon  the  conclusion  to  cast  up  the  poll,  and 
declare  which  candidate  has  the  majority. 

But  to  proceed,  I  will  do  these  two  things  :  First,  I  will  maintain  that  the 
plaintiff  has  a  right  and  privilege  to  give  his  vote  :  secondly,  in  consequence 
thereof,  that  if  he  be  hindered  in  the  enjoyment  or  exercise  of  that  right, 

(a)  Vide  Lord  Raym.  48G. 


ASHBY    V.     WHITE     ET    ALIOS.  257 

the  law  gives  him  an  action  against  the  disturber,  and  that  this  is  the  pro- 
per action  given  by  the  law. 

I  did  not  at  first  think  it  would  be  any  difficulty  to  prove  that  the  plain- 
tiff has  a  right  to  vote,  nor  necessary  to  maintain  it,  but  from  what  my  bro- 
thers have  said  in  their  arguments  I  find  it  will  be  necessary  to  prove  it.  It  is 
not  to  be  doubted,  but  that  the  Commons  of  England  have  great  and  consider- 
able right  in  the  government,  and  a  share  in  the  legislative,  without  whom 
no  law  passes ;  but  because  of  their  vast  numbers  this  right  is  not  exercise- 
able  by  them  in  their  proper  persons,  and  therefore  by  the  constitution  of 
England,  it  has  been  directed,  that  it  should  be  exercised  by  representatives, 
chosen  by  and  out  of  themselves,  who  have  the  whole  right  of  all  the  Com- 
mons of  England  vested  in  them  :  and  this  representation  is  exercised  in  three 
different  qualities,  either  as  knights  of  shires,  citizens  of  cities,  or  burgesses  of 
boroughs ;  and  these  are  the  persons  qualified  to  represent  all  the  Commons 
of  England.  The  election  of  knights  belongs  to  tho  freeholders  of  the  coun- 
ties, and  it  is  an  original  right  vested  in  and  inseparable  from  the  freehold,  and 
can  no  more  be  severed  from  their  freehold,  than  the  freehold  itself  can  be 
taken  away.  Before  the  statute  of  8  Hen.  6,  c.  7,  any  man  that  had  a  freehold, 
though  never  so  small,  had  a  right  of  voting,  but  by  that  statute  the  right  of 
election  is  confined  to  such  persons  as  have  lands  or  tenements  to  the  yearly 
value  of  forty  shillings  at  least,  because  as  the  statute  says,  of  the  tumults 
and  disorders  which  happened  *at  elections,  by  the  excessive  and  out-  ^j,  .. 
rageous  number  of  electors;  but  still  the  right  of  election  is  as  an  L  J 
original  right,  incident  to,  and  inseparable  from  the  freehold.  As  for  citizens 
and  burgesses,  they  depend  on  the  same  right  as  the  knights  of  shires,  and 
difft3r  only  as  to  the  tenure,  but  the  right  and  manner  of  their  election  is  on 
the  same  foundation.  Now,  boroughs  are  of  two  sorts  ;  first,  where  the 
electors  give  their  voices  by  reason  of  their  burgership  ;  or,  secondly  by 
reason  of  their  being  members  of  the  corporation.  Littleton,  in  his  chapter 
of  tenure  in  burgage,  162,  C.  L.  108,  b.  109,  says,  "  Tenure  in  burgage  is. 
where  an  ancient  borough  is,  of  the  which  the  king  is  lord,  of  whom  the 
tenants  hold  by  certain  rents,  and  it  is  but  a  tenure  in  socage  :"  and  sect. 
164,  he  says,  "  and  it  is  to  wit,  that  the  ancient  towns  called  boroughs  be 
the  most  ancient  towns  that  be  within  England,  and  are  called  boroughs, 
because  of  tliem  come  the  burgesses  to  parliament."  So  that  the  tenure  of 
burgage  is  from  the  antiquity,  and  their  tenure  in  socage  is  the  reason  of 
their  estate,  and  the  right  of  election  is  annexed  to  their  estate.  So  that  it 
is  part  of  the  constitution  of  England,  that  these  boroughs  shall  elect  mem- 
bers to  serve  in  parUament,  whether  they  be  boroughs  corporate  or  not 
corporate  ;  and  in  that  case  the  right  of  election  is  a  privilege  annexed  to 
the  burgage  land,  and  is,  as  I  may  properly  call  it,  a  real  privilege.  But 
the  second  sort  is,  where  a  corporation  is  created  by  charter,  or  by  prescrip- 
tion, and  the  members  of  the  corporation  as  such  choose  burgesses  to  serve 
in  parliament.  The  first  sort  have  a  right  of  choosing  burgesses  as  a  real 
right,  but  here  in  this  last  case  it  is  a  personal  right,  and  not  a  real  one,  and 
is  exercised  in  such  a  manner  as  the  charter  or  custom  prescribes  ;  and  the 
inheritance  of  this  right,  or  the  right  of  election  itself,  is  in  the  whole  body 
politic,  but  the  exercise  and  enjoyment  of  this  right  is  in  the  particular 
members.  And  when  this  right  of  election  is  granted  within  time  of  memory, 
it  is  a  franchise  that  can  be  given  only  to  a  corporation  :  as  is  resolved  bv 

Vol.  I.— 17 


258  SMITHS    LEADING    CASES. 

all  the  judges  against  my  Lord  Hohart,  in  the  case  of  Dungannon  in  Ireland, 
12  Co.  120,  121,  that  if  the  king  grant  to  the  inhabitants  of  IsKngton  to  be 
a  free  borough,  and  that  the  burgesses  of  the  same  town  may  elect  two  bur- 
gesses  to   serve   in  parliament,  that(fl)  such  a  grant  of  such  privilege  to 
burgesses  *not   incorporated  is  void,  for  the   inhabitants   have   not 
L         J  capacity  to  take  an  inheritance.    See  Hob.  15.    The  principal  case 
there  was,  the  king  constituted  the  town  of  Dungannon  to  be  a  free  borough, 
and  that  the  inhabitants  thereof  shall  be  a  body  politic  and  corporate,  con- 
sist! no- of  one  provost,  twelve  free  hurgesses  and  commonalty;  and  in  the 
same  name  may  sue  and  be  sued  ;  et  quod  ipsi  praefatus  prsepositus  et  liberi 
burgenses  burgi  prxdicti  el  successoros  sui  in  pcrpetuum  habeant  plenam. 
potestatem  et  aulhoritatem  eligendi,  mittendi,  et  returnandi  duos  discretes 
et  idoneos  vires  ad  inserviendum  et  atlendendum  in  quolibet  parliamento, 
in  dicto  regno  nostro  Hibernias  in  posterum  tcnendo,  and  so  proceeds  to 
give  them  power  to  treat,  and  give  voice  in  parliament,  as  other  burgesses  of 
any  other  ancient  borough,  either  in  Ireland  or  England,  have  used  to  do. 
And  upon  this  grant  it  was  adjudged,  by  all  llie  judges  of  England,  that  this 
power  to  elect  burgesses  is  an  inheritance  of  which  the  provost  and    bur- 
gesses were  not  capable,  for  that  it  ought  to  be  vested  in  the  entire  corpora- 
tion, viz.  provost,  burgesses,  and  commonalty,  and  that  therefore  the  taw  in 
this  case  did  vest  that  privilege  in  the  whole  corporation  in  point  of  interest, 
though  the  execution  of  it  was  committed  to  some,  persons,  members  of  the 
same  corporation.      12  Co.  120,  121.     Hob.  14,  15.     As  to  the  manner  of 
election,  every,  borough  subsists  on  its  own  foundation,  and  where  this  pri- 
vilege of  election'is  used  by  particular  persons,  it  is  a  particular  right  vested 
in  every  particular  man  ;  for  if  we  consider  the  matter,  it  will  appear,  that 
the  particular  members  and  electors,  their  persons,  their  estates,  and  their 
liberties,  are  concerned  in  the  laws  that  are  made,  and  they  are  represented 
as  particular   persons,  and   not  quatenus  a  body   politic  ;  therefore,  when 
their  particular  rights  and   properties  are   to  be  bound  (which  are  much 
more  valuable  perhaps  than  those  of  the  corporation)  by  the  act  of  the 
representative, he  ought  to  represent  the  private  persons.     And  this  is  evi- 
dent from  all  the  writs,  which  were  anciently  issued  for  levying  the  wages 
of  the  knights   and  burgesses  that  served  in  parliament.     As  46  Edw.  3. 
Rot.  Pail.  memb.  4.  in  dorso.     For  when  wages  were  paid  to  the  members, 
they  were  not  assessed  upon  the  corporation,  but  upon  the  commonalty  as 
private  persons,  as  the  writ  shows,  which  indeed  is  directed  to  th^  sheriff,  or 
^       -.  to  the  mayor,  &c.,  yet  the  command  is,  'quod  ds  communitate  *com- 
L         -J  itatus,  civilalis,  vel  burgi,  habere  faciat  militibus  civibus  aut  bur- 
gensibus,  10/.  pro  expensis  suis.'     But  now,  if  the  corporation  were  only 
to  be  represented,  and  not   the  particular  members  of  it,  then  the  corpora- 
tion only  ought  to  be  at   the  charge  ;  but   it   is  plain   that   the   particular 
members    are  at  the  charge.     And  this  is    no    new   thing,   but  agreeable 
to  reason  and  the  rules  of  law,  that  a  franchise  should  be  vested  in  the  cor- 
poration aggregate,  and  yet  the  benefit  of  it  to   redound  to  the  particular 
members,  and  to  be  enjoyed  by  them  in  their  private  capacity.     As  is  the 
case  of  Waller  and  Hanger,  Mo,  8.32,  833,  where  the  king  granted  to  the 
mayor   and   citizens  of  London,   quod   nulla    prisagia  sint  soluta  de  vinis 
civium  et  liberorum  hominum  de  London,  &c.     And  there  it  was  resolved, 

(a)  Vide  Co.  Lit.  3,  a. 


A  S  H  B  Y     V.     WHITE     E  T     ALIOS.  259 

that  although  the  grant  be  to  the  corporation,  yet  it  should  not  enure  to  the 
body  politic  of  the  city,  but  to  the  pariicular  persons  of  the  corporation  who 
should  have  the  fruit  and  execution  of  the  grant  for  their  private  wines,  and 
it  should  not  extend  to  the  wines  belonging  to  the  body  politic  ;  and  so  is 
the  constant  experience  at  this  day.  So  in  the  case  of  Mellor  v.  Spateman, 
1  Saund.  343,  where  the  corporation  of  Derby  claim  common  by  prescrip- 
tion, and  though  the  inheritance  of  the  common  be  in  the  body  politic,  yet 
the  particular  members  enjoy  the  fruit  and  benefit  of  it,  and  put  in  their 
own  cattle  to  feed  on  the  common,  and  not  the  cattle  belonging  to  the  cor- 
poration ;  but  that  is  not  indeed  our  case.  But  from  hence  it  appears 
that  every  man,  that  is  to  give  his  vote  on  the  election  of  members  to 
serve  in  parliament,  has  a  several  and  particular  right  in  his  private 
capacity,  as  a  citizen  or  burgess.  And  surely  it  cannot  be  said,  that 
this  is  so  inconsiderable  a  right,  as  to  apply  that  maxim  to  it,  de  mini- 
mis non  curat  lex.  A  right  that  a  man  has  to  give  his  vote  at  the  election, 
of  a  person  to  represent  him  in  parliament,  there  to  concur  to  the  making 
of  laws  which  are  to  bind  his  liberty  and  property,  is  a  most  transcendent 
thing,  and  of  an  high  nature,  and  the  law  takes  notice  of  it  as  such  in  divers 
statutes  :  as  in  the  statute  of  34  &  35  Hen.  8,  c.  Idf  intituled  an  act  for 
making  of  knights  and  burgesses  within  the  county  and  city  of  Chester; 
where  in  the  preamble  it  is  said,  that  whereas  the  said  county  palatine  of 
Chester  is  and  hath  heen  always  hitherto  exempt,  excluded,  and  separated, 
out  and  from  the  king's  *court,  by  reason  whereof  the  said  inhabi-  p*|24-| 
tants  have  hitherto  sustained  manifold  disherisons,  losses,  and  L 
damages,  as  well  in  their  lands,  goods,  and  bodies,  as  in  the  good,  civil,  and 
politic  governance  and  maintenance  of  the  commonwealth  of  their  said 
county,  &c.  So  that  the  opinion  of  the  parliament  is,  that  the  want  of  this 
privilege  occasions  great  loss  and  damage.  And  the  same  farther  appears 
from  the  25  Car.  2,  9,  an  act  to  enable  the  county  palatine  of  Durham  to 
send  knights  and  burgesses  to  serve  in  parliament,  which  recites,  "whereas 
the  inhabitants  of  the  county  palatine  of  Durham  have  not  hitherto  had  the 
liberty  and  privilege  of  electing  and  sending  any  knights  and  burgesses  to 
the  high  court  of  parliament,"  &c.  The  right  of  voting  at  the  election  of 
burgesses  is  a  thing  of  the  highest  importance,  and  so  great  a  privilege,  that 
it  is  a  great  injury  to  deprive  the  plaintifTof  it.  These  reasons  have  satis- 
fied me  as  to  the  first  point. 

2.  If  the  plaintiff  has  a  right,  he  must  of  necessity  have  a  means  to  vin- 
dicate and  maintain  it,  and  a  remedy  if  he  is  injured  in  the  exercise  or  enjoy- 
ment of  it;  and  indeed  it  is  a  vain  thing  to  imagine  a  right  without  a 
remedy  ;(a)  for  want  of  right  and  want  of  remedy  are  reciprocal.  As  if  a 
purchaser  of  an  advowson  in  fee-simple,  before  any  presentment,  suffer  an 
usurpation,  and  six  months  to  pass,  without  bringing  his  quare  impedit, 
he(6)  has  lost  his  right  to  the  advowson,  because  he  has  lost  his  quare  impe- 
dit, which  was  his  only  remedy  ;  for  he(c)  could  not  maintain  a  writ  of 
right  of  advowson;  and  though  he  afterwards  usurp  and  die,  and  the 
advowson  descend  to  his  heir  ;  yet(rf)  the  heir  cannot  be  remitted,  but  the 
advowson  is  lost  forever  without  recovery.     6  Co.  50.     Where  a  man  has 

(a)  D.  ace.  6.  Co.  .58,  b.  (h)  Sed  nunc  vide  7  Ann.  c.  18. 

(c)  Vide  II.  Bl.  1  Litt.  s.  514._Co.  Lit.  293,  a.    (</)  Vide  6  Co.  58. 


260  smith's  leading   cases. 

but  one  remedy  to  come  at  his  right,  if  he  loses  that  he  loses  his  right.  It 
would  look  very  strange,  when  the  Commons  of  England  are  so  fond  of 
their  right  of  sending  representatives  to  parliament,  that  it  should  be  in  the 
power  of  a  sherifFor  other  officer  to  deprive  them  of  that  right,  and  yet  that 
they  should  have  no  remedy  ;  it  is  a  thing  to  be  admired  at  by  all  mankind. 
Supposing  then  that  the  plaintiff  had  a  right  of  voting,  and  so  it  appears 
on  the  record,  and  the  defendant  has  excluded  him  from  it,  nobody  can 
say,  that  the  defendant  has  done  well ;  then  he  must  have  done  ill,  for  he 
has  deprived  the  plaintiff' of  his  right ;  so  that  the  ^plaintiff' having 
L  J  a  right  to  vote,  and  the  defendant  having  hindered  him  of 
it,  it  is  an  injury  to  the  plaintiff".  Where  a  new  act  of  parliament  is  made 
for  the  benefit  of  the  subject,  if  a  man  be  hindered  from  the  enjoyment  of 
it,  he  shall  have  an  action  against  such  person  who  so  obstructed  him. 
How  else  comes  an  action  to  be  maintainable  by  the  party  on  the  statute  of 
2  Ric.  2,  de  scandalis  magnatum,  12  Co.  134,  but  in  consequence  of  law  ? 
For  the  statute  was  made  for  the  preservation  of  the  public  peace,  and  that 
is  the  reason  that  no  writ  of  error  lies  in  the  Exchequer  Chamber  by  force 
of  the  statute  of  27  Eliz.  in  a  judgment  in  the  King's  Bench  on  an  action 
de  scandalis,  for  it  Ts  not  included  within  the  words  of  the  statute  :  for 
though  the  statute  says,  such  writ  shall  lie  upon  judgments  in  actions  on 
the  case,  yet  it  does  not  extend  to  that  action,  although  it  be  an  action  on 
the  case,  because(o)  it  is  an  action  of  a  far  higher  degree,  being  founded 
specially  upon  a  statute,  1  Cro.  142.  If  then,  when  a  statute  gives  a  right, 
the  party  shall  have  an  action  for  the  infringement  of  it,  is  it  not  as  forcible 
when  a  man  has  his  right  by  the  common  law  ?  This  right  of  voting  is  a 
right  in  the  plaintiff'by  the  common  law,  and  consequently  he  shall  maintain 
an  action  for  the  obstruction  of  it.  But  there  wants  not  a  statute  too  in 
this  case,  for  by  West.  1,  3  Edw,  1,  c.  5,  it  is  enacted,  "  that  forasmuch  as 
elections  ought  to  be  free,  the  king  forbids,  upon  grievous  forfeiture,  that 
nnj  great  man,  or  other,  by  power  of  arms,  or  by  malice  or  menaces,  shall 
disturb  to  make  free  election."  2  Inst.  168,  169.  And  this  statute,  as  my 
Lord  Coke  observes,  is  only  an  enforcement  of  the  common  law  ;  and  if  the 
parliament  thought  the  freedom  of  elections  to  be  a  matter  of  that  conse- 
quence, as  to  give  their  sanction  to  it,  and  to  enact  that  they  should  be  free  ; 
it  is  a  violation  of  that  statute,  to  disturb  the  plaintiff  in  this  case  in  giving 
his  vote  at  an  election,  and  consequently  actionable. 

And  I  am  of  opinion,  that  this  action  on  the  case  is  a  proper  action.  My 
brother  Poivell  indeed  thinks,  that  an  action  upon  the  case  is  not  maintain- 
able, because  here  is  no  hurt  or  damage  to  the  plaintiff;  but  surely  every 
injury  imports  a  damage,  though  it  does  not  cost  the  party  one  farthing, 
and  it  is  impossible  to  prove  the  contrary  ;  for  a  damage  is  not  merely 
r*126l  7-'^^^''*'"''^'  ^ut  o.n  injury  imports  a  damage,  *ii'hen  a  man  is 
thereby  hindered  of  his  right.  As  in  an  action  for  slanderous  words, 
though  a  man  does  not  lose  a  penny  by  reason  of  the  speaking  them,  yet 
he  shall  have  an  action.  So  if  a  man  gives  another  a  cuff  on  the  ear,  though 
it  cost  him  nothing,  no  not  so  much  as  a  little  diachylon,  yet  he  shall  have 
his  action,  for  it  is  a  personal  injury.  So  a  man  shall  have  an  action  against 
another  for  riding  over  his  ground,  though  it  do  him  no  damage;   for  it  is 

(fif)  Vide  ]  Bl.  Com.  88. 


ASHBY     V.     WHITE     ET     ALIOS.  261 

an  invasion  of  his  property,  and  the  other  has  no  right  to  come  there  ;  and 
in  these  cases  the  action  is  brought  vi  et  armis.  But  for  invasion  of  another's 
franchise  trespass  vi  et  annis  does  not  lie,  but  an  action  of  trespass  on  the 
case  ;  as  where  a  man  has  retorna  brevium,  he  shall  have  an  action  against 
any  one  wiio  enters  and  invades  his  franchise,  though  he  lose  nothing  by  it. 
So  here  in  the  principal  case  the  plaintiff  is  obstructed  of  his  riglit,  and 
shall  tiierefore  have  his  action.  And  it  is  no  objection  to  say,  that  it  will 
occasion  rnuUiplicity  of  actions;  for  if  men  will  multiply  injuries,  actions 
must  be  multiplied  too,  for  every  man  that  is  injured  ought  to  have  his 
recompense.  Suppose  the  defendant  had  beat  forty  or  fifty  men,  the  damage 
done  to  each  one  is  peculiar  to  himself,  and  he  shall  have  his  action.  So 
if  many  persons  receive  a  private  injury  by  a  public  nuisance,  every  man 
shall  have  his  action,  as  is  agreed  in  Williams's  case,  5  Co.  73,  a. ;  and 
Weslbury  and  Puwell,  Co.  Lilt.  56,  a.  Indeed,  where  many  men  are 
amended  by  one  particular  act,  there  they  must  proceed  by  way  of  indict- 
ment, and  not  of  action  ;  for  in  that  case  the  law  will  not  multiply  actions. 
But  it  is  otherwise  when  one  man  only  is  ofTended  by  that  act,  he  shall 
have  his  action ;  as  if  a  man  dig  a  pit  in  a  common,  every  commoner  shall 
have  an  action  on  the  case  per  quod  communiam  suam  in  tam  amplo  modo 
habere  non  potuit  ;  for  every  commoner  has  a  several  right.  But  it  would 
be  otherwise  if  a  man  dig  a  pit  in  a  highway  ;  every  passenger  shall  not 
bring  his  action,  but  the(a)  party  shall  be  putjished  by  indictment,  because 
the  injury  is  general  and  common  to  all  that  pass.  But  when  the  injury  is 
particular  and  peculiar  to  every  man,  each  man  shall  have  his  action.  In 
the  case  of  Turner  v.  Sterling,  the  plaintiff  was  not  elected;  he  could  not 
give  in  evidence  the  loss  of  his  place  as  a  damage,  for  he  was  never  in  it  ; 
but  the  gist  of  the  action  is,  that  the  plaintifl' having  a  right  to  stand  i-j^^o^i 
for  *the  place,  and  it  being  difficult  to  determine  who  had  the  L  "  J 
majority,  he  had  therefore  a  right  to  demand  a  poll,  and  the  defendant,  by 
denying  it,  was  liable  to  an  action.  If  public  officers  will  infringe  men's 
rights,  they  ought  to  pay  greater  damages  than  other  men,  to  deter  and 
hinder  other  officers  from  the  like  offences.  So  the  case  of  Hunt  and 
Dowman,  2  Cro.  478,  where  an  action  on  the  case  is  brought  by  him  in 
reversion  against  lessee  for  years,  for  refusing  to  let  him  enter  into  the 
house,  to  see  whether  any  waste  was  committed.  In  that  case  the  action  is 
not  founded  qn  the  damage,  for  it  did  not  appear  that  any  waste  was  done, 
but  because  the  plaintiff  was  hindered  in  the  enjoyment  of  his  right,  and 
surely  no  other  reason  for  the  action  can  be  supposed. 

But  in  the  principal  case,  my  brother  says  we  cannot  judge  of  this 
matter,  because  it  is  a  parliamentary  thing.  O  !  by  all  means,  be  very 
tender  of  that.  Besides,  it  is  intricate,  that  there  may  be  contrariety  of 
opinions.  But  this  matter  can  never  come  in  question  in  parliament,  for  it 
is  agreed  that  the  persons  for  whom  the  plaintiff  voted  were  elected,  so  that 
the  action  is  brought  for  being  deprived  of  his  vote  ;  and  if  it  were  carried 
for  the  other  candidates  against  whom  he  voted,  his  damage  would  be  less. 
To  allow  this  action  will  make  public  officers  more  careful  to  observe  the 
constitution  of  cities  and  boroughs,  and  not  to  be  so  partial  as  they  com- 
monly are  in  all  elections,  which  is  indeed  a  great  and  growing  mischief, 

(a)  Vide  ante,  486. 


262  smith's   leading   cases. 

and  tends  to  the  prejudice  of  the  peace  of  the  nation.  But  they  &ay,  that 
this  is  a  matter  out  of  our  jurisdiction,  and  we  ought  not  to  enlarge  it.  I  agree 
we  ought  not  to  encroach  or  enlarge  our  jurisdiction  ;  by  so  doing  we  usurp 
both  on  the  right  of  the  queen  and  the  people  ;  but  sure  we  may  determine 
on  a  charter  granted  by  the  king,  or  on  a  matter  of  custom  or  prescription, 
when  it  comes  before  us,  without  encroaching  on  the  parliament.  And  if 
it  be  a  matter  within  our  jurisdiction,  we  are  bound  by  our  oaths  to  judge 
of  it.  This  is  a  matter  of  property  determinable  before  us.  Was  ever 
such  a  petition  heard  of  in  parliament,  as  that  a  man  was  hindered  of  giving 
-,  his  vote,  and  praying  them  to  give  him  remedy  ?  The  parliament 
L  -■  undoubtedly  would  say,  take  your  remedy  at  law.  It  is  not  like*the 
case  of  determining  the  right  of  election  between  the  candidates. 

My  brother  Powell  says,  that  the  plaintiff's  right  of  voting  ought  first  to 
have  been  determined  in  parliament,  and  to  that  purpose  cites  the  opinion 
of  my  Lord  Hobart,  318,  that  ihe  patron  may  bring  his  action  upon  the  case 
against  the  ordinary  after  a  judgment  for  him  in  a  quare  impedit,  but  not 
before.  It  is  indeed  a  fine  opinion,  but  I  do  not  know  whether  it  will  bear 
debating,  and  how  it  will  prove,  when  it  comes  to  be  handled.  For  at  common 
law  the  patron  had  no  remedy  for  damages  against  the  disturber,  but  the  stat- 
ute 13  Ed.  1,  St.  1,  c.  5  s.  3,  gives  him  damages  ;  but  if  he  will  not  make  the 
bishop  a  party  to  the  suit,  he  has  lost  his  remedy  which  the  statute  gives 
him.  But  in  our  case  the  plaintiff  has  no  opportunit)'  to  have  remedy  else- 
where. My  brother  Potcys  has  cited  the  opinion  of  Littleton  on  the  statute 
of  Merton,  that  no  action  lay  upon  the  words,  "  si  parentes  conquerantur," 
because  none  had  ever  been  brought,  yet  he  cannot  depend  upon  it.  Indeed, 
that  is  an  argument,  w-hen  it  is  founded  upon  reason,  but  it  is  none  when  it 
is  against  reason.  Bu4:  I  will  consider  the  opinion.  Some  question  had 
arisen  on  the  opening  of  that  slatuieon  those  words,  "  si  parentes  conqueran- 
tur," &c.,  what  was  the  meaning  of  them,  whether  they  meant  a  complaint 
in  a  court  in  a  judicial  manner.!  But  it(a)  is  plain  the  word  "conqueran- 
tur" means  only  "si  parentes  lamenlentur,"  that  is,  only  a  complaint  in  pais 
and  not  in  a  court ;  for  the  guardian  in  socage  shall  enter  in  that  case,  and 
shall  have  a  special  writ  de  ejectione  custodise  terrae  et  hasredis.  But  this 
saying  has  no  great  force  ;  if  it  had,  it  would  have  been  destructive  of  many 
new  actions,  which  are  at  this  day  held  to  be  good  law.  The  case  of  Hunt 
and  Dowman,  before  mentioned,  was  the  first  action  of  that  nature  ;  but  it 
was  grounded  on  the  common  reason  and  the  ancient  justice  of  the  law.  So 
the  case  of  Turner  and  Sterling.  Let  us  consider  wherein  the  law  consists, 
and  we  shall  find  it  to  be,  not  in  particular  instances  and  precedents,  but  in 
the  reason  of  the  law,  and  ubi  eadem  ratio,  ibi  idem  jus.  This  privilege  of 
voting  does  not  differ  from  any  other  franchise  whatsoever.  If  the  House 
of  Commons  do  determine  this  matter,  it  is  not  that  they  have  an  original 
r*I29l  ^^S'^^'  *^"^  ^^  incident  to  elections.  But  we  do  not  deny  them  their 
L  -J  right  of  examiniug  electi.ons  ;  but  we  must  not  be  frightened  when 
a  matter  of  property  comes  before  us,  by  saying  it  belongs  to  the  parliament ; 

t  That  usage  may  explain  the  meaning-  of  an  ancient  statute,  see  Rex  v.  Scot,  3  T.  R. 
604  ;  Sheppard  v.  Gosnold,  Vaugh.  ]  69.  In  Bank  of  England  v.  Anderson,  3  Bing.  N.  C. 
666,  per  Tindal,  C.  J. — "We  attribute  great  weight  to  that  maxim  of  law  contemporanea 
expositio  fortissima  est  in  lege,"  And  this  is  said  with  reference  to  a  statute  no  older  than 
5  &  6  W.  &  M.  (a)  Vide  Litt.  108. 


ASH  BY     V.     WHITE     ET     ALIOS.  263 

we  must  exert  the  queen's  jurisdiction.  My  opinion  is  founded  on  the  law 
of  England.  The  case  of  Mors  and  Slue,  1  Vent.  190.  238,  was  the  first 
action  of  that  nature  ;  but  the  novelty  of  it  was  no  objection  to  it.  So  the 
case  of  Smith  and  Grashaw,  1  Cro.  15,  W.  Jones,  93,  that  an  action  of  the 
case  lay  for  falsely  and  maliciously  indicting  the  plaintiff  for  treason,  though 
the  objections  were  strong  against  it,  yet  it  was  adjudged,  that  if  the  prose- 
cution were  without  probable  cause,  there  was  as  much  reason  the  action 
should  be  maintained  as  in  other  cases.  So  15  Car.  2,  C.  B.,  between  Bod- 
ily and  Long,  it  was  adjudged  by  Bridgman,  Chief  Justice,  &c.,  that  an 
action  on  the  case  lay  for  a  riding,  whenever  the  plaintiff  and  his  wife 
fought,  for  it  was  a  scandalous  and  reproachful  thing.  So  in  the  case  of 
Herring  and  Finch,  2  Lev.  250,  nobody  scrupled  but  that  the  action  well 
lay,  for  the  plaintiff  was  thereby  deprived  of  his  right.  And  if  an  action  is 
maintainable  against  an  officer  for  hindering  the  plaintiff'  from  voting  for  a 
mayor  of  a  corporation,  who  cannot  bind  him  in  his  liberty  nor  estate,  to 
say  that  yet  this  action  wUl  not"  lie  in  our  case,  for  hindering  the  plaintiff 
to  vote  at  an  election  of  his  representative  in  parliament,  is  inconsistent. 
Therefore,  my  opinion  is,  that  the  plaintiff  ought  to  have  judgment, 

Friday,  the  14th  of  January,  1703,  this(fi')  judgment  was  reversed  in  the 
House  of  Lords,  and  judgment  given  for  the  plaintiff  by  fifty  lords  against 
sixteen.  Trevor,  Chief  Justice,  and  Baron  Price  were  of  opinion  with  the 
three  judges  of  the  King's  Bench.-  Ward,  Q.  B.,  and  Bury  and  Smith, 
barons,  were  of  opinion  with  the  Lord  Chief  Justice  Holt,  Tracy,  dubitante, 
Nevill  and  Blencowe,  absent. 

(Note. — I  had  it  from  good  hands,  that  Tracy  agreed,  clearly  that  the 
action  lay,  but  was  doubtful  upon  the  manner  of  laying  the  declaration.) 

Upon  the  arguments  of  this  case.  Holt,  Chief  Justice,  said,  the  plaintiff 
has  a  particular  right  vested  in  him  to  vote.  Is  it  not  then  a  wrong,  and  an 
injury  to  that  right,  to  refuse  to  receive  his  vote  ?  So  if  a  borough  has  a 
right  of  common,  and  the  freemen  are  hindered  from  enjoying  it  by  inclosure 
and  the  like, every  freeman  may  maintain  his  action.  This  action  is  brought 
by  the  plaintiff,  for  the  infringement  of  his  franchise.  You  would  have 
nothing  to  be  a  damage,  but  what  is  pecuniary,  and  a  damage  to  property. 
If  a  man  has  retorna  brevium,  although  no  fees  were  due  to  him  at  common 
law,  yet  if  the  sheriff  enters  within  his  liberty,  and  executes  process  there, 
it  is  an  invasion  of  his  franchise,  and  he  may  bring  his  action  ;  and  there  is 
the  same  reason  in  this  case.  Although  this  matter  relates  to  the  parlia- 
ment, yet  it  is  an  injury  precedaneous  to  the  parliament,  as  my  Lord  Hale 
said  in  the  case  of  Bernardiston  v.  Soame,  2  Lev.  114.  116.  The  parlia- 
ment cannot  judge  of  this  injury,  nor  give  damage  to  the  plaintiff  for  it: 
they  cannot  make  him  a  recompense.  Let  all  people  come  in,  and.  vote 
fairly,  it  is  to  support  one  or  the  other  party  to  deny  any  man's  vote.  By 
my  consent,  if  such  an  action  comes  to  be  tried  before  me,  I  will  direct  the 
jury  to  make  him  pay  well  for  it ;  it  is  denying  him  his  English  right :  and 
if  this  action  be  not  allowed,  a  man  may  be  forever  deprived  of  it.  It  is  a 
great  privilege  to  choose  such  persons  as  are  to  bind  a  man's  life  and 
property  by  the  laws  they  make. 

(a)  Vide  1  Bro.  Pari.  Cas.  45. 


264 


SMITHS     LEADING     CASES. 


AsHBY  V.  White  is  usually  cited  to 
exemplify  tliat  maxim  of  the  law,  ubi 
jus  ibi  remedinm  ;  a  maxim  which  has 
at  all  times  been  considered  so  valuable, 
that  it  gave  occasion  to  the  first  inven- 
tion of  that  form  of  action  called  an  ac- 
tion on  the  case.  For  the  statute  of 
Westminster  2,  13  Edw.  1,  c.  24,  which 
is  only  in  affirmance  of  the  common  law 
on  this  subject,  and  was  passed  to  quick- 
en the  diligence  of  the  clerks  in  the 
chancery,  who  were  too  much  attached 
to  ancient  precedents,  enacts,  that 
"  whensoever  from  thenceforth  a  writ 
shall  be  found  in  the  chancery,  and  in  a 
like  case  falling-  under  the  same  right, 
and  requiring  like  remedy,  no  precedent 
of  a  writ  can  be  produced,  the  clerks  in 
chancery  shall  agree  in  forming  a  new 
one;  and  if  they  cannot  agree,  it  shall 
be  adjourned  till  the  next  parliament, 
where  a  writ  shall  be  framed  by  con- 
sent of  the  learned  in  the  law,  lest  it 
happen  for  the  future  that  the  court  of 
our  lord  the  king  be  deficient  in  doing 
justice  to  the  suitors."  Accordingly 
the  courts  have  always  held  that  the 
novelty  of  the  particular  complaint  al- 
leged in  an  action  on  the  case,  is  no 
objection,  provided  an  injury  cognizable 
by  law  be  shown  to  have  been  inflicted 
on  the  plaintif}'.  Thus,  in  Chapman  v. 
Pickersgill,  2  Wilson,  146,  wliich  was 
an  action  for  falsely  and  maliciously 
suing  out  a  commission  of  bankruptcy, 
Pratt,  C.  J.,  in  answer  to  the  objection 
that  the  action  was  a  novel  description, 
said,  that  "  this  had  been  urged  in 
Ashby  V.  White,  but  he  did  not  wish 
ever  to  hear  it  again.  This  was  an 
action  for  a  tort:  torts  were  infinitely 
r  *T^1  1  ^'fii'it>"*'  ^'"^'  <-here  was  not  any 
^  -I    *thiug  in  nature  that  might  not 

be  converted  into  an  instrument  of  mis- 
chief" So  in  Pasley  v.  Freeman,  3  T. 
R.  63,  per  Ashhurst,  J. :  "  Another  ar- 
gument which  has  been  made  use  of,  is, 
that  this  is  a  new  case,  and  that  there 
is  no  precedent  of  such  an  action.  Where 
cases  are  new  in  their  principle,  there 
I  admit  that  it  is  necessary  to  have  re- 
course to  legislative  interposition  in 
order  to  remedy  tiie  grievance ;  but 
where  the  case  is  only  new  in  the  in- 
stance, and  the  only  question  is  upon 
the  application  of  a  principle  recognized 
in  the  law  to  such  new  case,  it  will  be 
just  as  competent  to  courts  of  justice  to 
apply  the  principle  to  any  case  that  may 
arise  two  centuries  hence  as  it  was  two 
centuries  ago.     If  it  were  not  so,   we 


ought  to  blot  out  of  our  law  books  one- 
fourth  part  of  the  cases  that  are  to  be 
found  in  them."  In  Winsmore  v.  Green- 
bank,  Willcs,  577,  the  declaration  stated 
that  the  plaintifl''s  wife  unlawfully,  and 
against  his  consent,  went  away  and  ab- 
sented herself  from  him,  and  that  during 
her  absence  a  large  estate  was  devised 
to  her  separate  use;  that  she  thereupon 
became  desirous  of  being  reconciled  and 
cohabiting  with  her  husband,  but  that 
the  defendant  persuaded  and  enticed  her 
to  continue  apart  till  her  death,  which 
she  did  ;  whereby  the  plaintiff'  lost  the 
comfort  and  -society  of  his  wife,  and  her 
assistance  in  his  domestic  afi'airs,  and 
the  profit  and  advantage  of  her  fortune. 
On  motion  in  arrest  of  judgment  it  was 
objected  tiiat  the  action  was  unprece- 
dented;  but  Willes,  C.  J.,  said  "that 
the  form  of  action  on  the  case  was  in. 
troduced  for  this  reason,  that  the  law 
would  never  sutler  an  injury  and  a  dam- 
age without  a  remedy,  and  that  there 
must  be  new  facts  in  every  special  ac- 
tion on  the  case."  Numerous  other 
instances  might  here  be  cited,  but  this 
in  so  clear  a  matter  seems  unnecessary. 
See  the  judgment  in  Langridge  v.  Levy, 
2  Mee.  &  Welsby,  519. 

The  class  of  cases  from  which  it  is 
important  to  distinguish  Ashby  v.  White, 
&c.,  are  those  in  which  a  damage  is 
incurred  by  the  plaintiff,  but  a  damage 
not  occasioned  by  any  thing  which  the 
law  esteems  an  injury.  In  such  cases 
as  these  he  is  said  to  suffer  damnum 
sine  injuria,  and  can  maintain  no  ac- 
tion, Tims  if  a  man  establish  an  oflTen- 
sive  trade  near  my  dwelling-house,  so  as 
to  render  it  uncomfortable,  I  may  main- 
tain an  action  on  the  case  against  hira 
for  a  nuisance,  for  here  is  damnum 
coupled  with  injuria.  But  if  I  build  my 
house  near  his  premises,  at  all  events  if 
they  have  been  so  used  for  twenty  years, 
the  case  is  altered ;  and,  although  I 
have  damnum,  yet  I  shall  maintain  no 
action,  since  it  is  not  coupled  w  ith  what 
the  law  considers  injuria.  Such  too,  it 
was  once  thought,  might  be  the  law, 
even  if  the  new-comer  had  built  within 
the  twenty  years,  since  otherwise  a 
man  setting-  up  an  offensive  trade  even 
in  the  remotest  spot  might  be  ruined  by 
the  first  person  who  chose  to  come  and 
dwell  near  liiin  within  twenty  years. 
In  Bliss  V.  Hall,  4  Bing.  N.  C.  185,  some 
expressions  however  dropped  from  the 
court  from  which  it  may  be  thought 
that  their  lordships'  opinion  was   that 


ASHBY     V.     WHITE     ET    ALIOS. 


265 


nothing  but  a  twenty  years'  user  will 
entitle  a  man  to  carry  on  an  offensive 
trade  without  interruption.  The  point 
was  not  however  necessary  for  the  deci- 
sion of  that  case  or  that  of  Elliotson  v. 
Feetham,  on  the  authority  of  which  it 
was  decided.  In  those  cases  to  an  ac- 
tion for  a  nuisance  to  plaintiff's  dwell- 
ino--house,  a  plea  that  the  noisome  trade 
was  established  before  the  plaintiff  be- 
came possessed  of  the  dwelling-house 
was  held  bad.  Non  constat  however 
what  would  have  been  the  decision  had 
the  plea  alleged  that  the  defendant  car- 
ried on  the  trade  before  the  build- 
ing of  the  plaintiff''s  house.  On  the 
same  principle — viz.  that  damage,  to 
sustain  an  action,  must  be  coupled  with 
injurij — if  A.  build  a  liouse  on  the  edge 
of  his  land,  and  the  proprietor  of  the  ad- 
joining land,  after  twenty  years,  dig  so 
near  it  that  it  fall  down,  an  action  on 
the  case  lies,  because  the  plaintiff'  has, 
by  twenty  years'  use,  acquired  a  pre- 
scriptive right  to  the  support,  and  to  in- 
fringe that  right  was  an  injury.  Stan- 
sell  V.  Jollard,  S.  N.  P.  441.  But  it  is 
otherwise  if  the  owner  of  land  adjoining 
a  newly-built  house  dig  in  a  similar 
manner,  and  produce  similar  results,  for 
there,  though  there  is  damage,  yet,  as 
there  is  no  right  to  support,  there  is  no 
injury  committed  by  withdrawing  it, 
and  therefore  no  action  maintainable. 
Partridge  v.  Scott,  3  Mee.  &  W.  220. 
Wyattv.  Harrison,:!  B.  &  Ad.  871.  [See 
Acton  V.  Blundell,  12  xVI.  &  W.  324. 353.] 
But  then  the  person  digging  must  not  do 
so  negligently,  otherwise  he  is  liable  to 
action.  See  Dodd  v.  Holme,  1  A  &  E. 
493;  Grocers'  Co.  v.  Donne,  3  Bing.  N. 
C.  34  ;  Trower  v.  Chad  wick,  3  Bmg.  N. 
C.  334,  and  the  same  case  reversed  in 
C.  S.  G  Bing.  N.  C.  1.  The  maxim 
which  governs  these  cases  is  Sic  utere 
tuo  ut  alienum  ne  laidas.  Therefore  A. 
may  be  sued  for  so  negligently  erecting 
a  hay-rick  on  the  edge  of  his  land  that 
it  ignites  and  burns  his  neighbour's 
house.  Vaughan  v.  Menlove,  3  Bing. 
N.  C.  468.  But  it  is  settled  by  Chad- 
wick  V.  Trower,  in  Cam.  Scacc.  6 
Bingh.  N.  C.  1,  that  even  supposing  that 
an  action  could  be  brought  tor  the  mere 
omission  to  take  care  while  pulling 
down  one's  own  property  that  a  neigh- 
bour's property  shall  not  be  injured,  still 
the  duty  to  take  such  care  does  not  ex- 
tend to  cases  where  the  defendant  is  not 
shown  to  have  had  notice  of  the  exist- 
ence or  nature  of  the  property  injured, 


as  where  it  was  a  vault.  In  consequence 
of  this  decision  it  will  probably  become 
usual  in  actions  of  this  sort  to  traverse 
notice  of  the  nature  or  extent  of  the 
property.  [See  Jordin  v.  Crump,  8  M. 
&  W.  782.  787.] 

The  mode  of  determining  whether 
damage  have  or  have  not  been  occa- 
sioned by  what  the  law  esteems  an  in- 
jtiry,  is  to  consider  lohether  any  right 
existing  in  the  party  damnified,  have 
been  infringed  upon  ;  for  if  so,  the  in- 
fringement thereof  is  an  injury :  and 
if  an  injury  be  shown,  the  law  will  pre- 
sume that  some  damage  resulted  from  it. 
See  Barker  v.  Green,  2  Bingh.  317.  To 
use  Lord  Holt's  words  in  the  present 
case  : — "  Every  injury  to  a  right  imports 
a  damage  in  the  nature  of  it,  though 
there  be  no  pecuniary  loss;"  for  instance, 
a  creditor  who  is  ascertained  to  be  such 
by  a  judgment  and  has  charged  his 
debtor  in  execution  has  a  right  to  the 
body  of  his  debtor  every  hour  till  the 
debt  is  paid.  Per  Buller,  J.,  5  T,  R.  40. 
He  has  a  right  to  have  the  body  in  goal, 
and  the  escape  of  a  debtor  for  ever  so 
short  a  time  is  necessarily  a  damage  to 
him,  and  an  action  for  an  escape  lies." 
Per  Parke,  B.,  4  Mee.  &  W.  153.  But 
where  a  defendant  is  in  custody  on 
mesne  process  and  after  the  return  of 
the  writ  by  which  he  was  Raptured,  the 
plaintiff's  right  is  "  to  have  the  defend- 
ant  in  custody  whenever  he  chooses  to 
remove  or  declare  against  him  f^  and, 
therefore,  although  an  escape  which  de- 
layed the  execution  of  a  habeas  corpus 
or  the  delivery  of  a  declaration  would 
be  actionable,  yet  an  escape  involving 
neither  of  those  consequences  is  not  so. 
Williams  v.  Mostyn,  4  M.  &  Wels.  145. 
Planck  v.  Anderson,  5  T.  R.  37.  [See 
Wylie  V.  Birch,  4  Q.  B.  506.] 

There  are,  indeed,  certain  cases  in 
which  an  act  may  be  in  law  an  injury, 
and  may  produce  damage  to  an  itidivid- 
ual,  and  yet  in  which  the  law  affords  no 
remedy,  or  at  least  no  immediate  one. 
These  are,  cases  in  which  the  act  done 
is  a  grievance  to  the  entire  community, 
no  one  of  whom  is  injured  by  it  more 
than  another.  In  such  a  case  the  mode 
of  punishing  the  wrong-doer  is  by  in- 
dictment, and  by  indictment  only.  1 
Inst.  56,  a.  Still,  if  any  person  have 
sustained  a  particular  damage  there- 
from, beyond  that  of  his  fellow-citizens, 
he  may  maintain  an  action  in  respect 
of  that  particular  damnification.  [See 
Rosse  V.  Groves,  5  M.  &  Gr.  613.]  Thus, 


266 


SMITH    S     LEADING     CASES. 


to  use  the  familiar  instance  put  by  the 
text  writers,  if  A.  dig-  a  trench,  across 
the  highway,  this  is  the  subject  of  an  in- 
dictment; but  if  B.  fall  into  it,  then  the 
particular  damage  thus  sustained  by  him 
r*T^-^l  ^^'"  ^upP°'"t  an  action.  *Still 
'-  "^  this  exception  is  subject  to 
qualification,  for  the  damage  must  not 
be  occasioned  by  want  of  ordinary  skill 
and  care  on  the  part  of  the  plaintiff. 
Butterfield  v.  Forrester,  11  East,  60; 
Flower  v.  Adam,  2  Taunt.  314.  Bridge 
V.  Grand  Junction  Co.,  2  Mee.  &  Wels. 
244  (which  see  as  to  the  form  of  plea  in 
such  a  case).  [See  Davies  v.  Mann,  10 
Id.  546:  Lynch  v.  Nurdin,  1  Q.  B.  29; 
Marriott  v.  Stanley,  1  M.  Si  Gr.  568.] 
Hawkins  v.  Cooper,  8  C.  &  P.  473.  And 
though  the  damage  and  wrong  be  ex- 
cessive, and  peculiarly  concern  an  indi- 
vidual, still,  if  it  amount  to  a  felony,  the 
private  remedy  is  suspended  until  public 
justice  shall  have  been  satisfied  ;  a  very 
wholesome  rule,  and  tending  to  prevent 
the  composition  of  felonies  under  the 
pretence  of  seeking  remedy  by  ac- 
tion. 

Again,  there  are  some  cases  in  which 
a  damage  is  sustained  by  one  man  in 
consequence  of  the  act  of  anotiier,  which 
act  would  be  considered  tortious  by  the 
law  if  the  damage  incurred  could  be 
properly  deduced  from  it ;  but  which, 
nevertheless,  is  dispunishable,  because 
the  damage  actually  incurred  is,  to  use 
the  legal  phrase,  too  remote  to  be  the 
subject-matter  of  an  action  ;  in  other 
words,  because  it  is  not  the  natural  con- 
sequence of  the  act  committed  by  the 
defendant;  see  Com.  Dig.  Action  on 
Case  for  Defamation  ;  and  Kelly  v.  Par- 
tington, 5  B.  &  Ad.  645;  and  it  has 
been  thought  that  damage  must  be 
always  considered  too  remote  when  it 
proceeds  from  the  illegal  act  of  a  third 
person,  for  that  the  law  will  not  esteem 
it  natural  that  an  illegal  act  should  be 
induced  by  any  consideration.     I^hus  if 

A.  falsely  assert  that  B.  has  spoken  in 
disparagement  of  C,  in  consequence  of 
which  C.  ceased  to  befriend  and  invite 
B.,  an  action  would  be  maintainable  ; 
see  Moore  v.  Meagher,  1  'J'aunt.  39; 
but  if  C.  were  in  consequence  to  beat 

B.  no  action  could  be  maintained  by  him 
against  A.  on  account  of  tiie  damage 
sustained  from  the  beating.  So  in  Vi- 
cars V.  Wilcox,  8  Ea.st,  1,  where  the 
defendant  accused  the  plaintiff  of  unlaw- 
fully cutting  his  (the  defendant's)  cord, 
in  consequence  of  which  J.  O.  dismissed 


plaintiff  from  his  service  before  the  ex- 
piration of  his  year,  Lord  Ellenborough 
said,  "  that  the  special  damage  must  be 
the  legal  and  natural  consequence  of 
the  words  spoken ;  and  here  it  was  an 
illegal  consequence,  a  mere  wrongful 
act  of  the  master,  for  which  the  defend- 
ant was  no  more  answerable  than  if,- in 
consequence  of  the  words,  other  per- 
son had  seised  the  plaintiff  and  thrown 
him  into  a  horse-pond  for  his  supposed 
transgression."  See  Morris  v.  Lang- 
dale,  2  B.  iSi  P.  234;  Knight  v.  Gibbs, 
1  Ad.  &  Ell.  43  ;  Ashley  v.  Harrison,  1 
Esp.  49;  Ward  v.  Weeks,  4  M.  &  P. 
796.  This  doctrine,  however,  has  been 
questioned  ;  see  Green  v.  Button,  2  C. 
M.  &  R.  707,  and  1  Stark,  on  Libel,  205, 
and  the  notes  to  Vicars  v.  Wilcox,  post, 
vol.  ii. 

The  decision  in  tliis  particular  case  of 
Ashby  V.  White,  occasioned  one  of  the 
most  furious  controversies  between  the 
Houses  of  Lords  and  Commons  of  which 
there  is  an  example  in  English  history. 
A  full  account,  setting  forth  at  large  the 
parliamentar}'^  documents  respecting  it, 
will  be  found  in  the  notes  of  Mr.  Gale's 
excellent  edition  of  Lord  Raymond,  pp. 
597,  to  603.  It  arose  from  an  idea  en- 
tertained by  the  Commons  that  the  at- 
tempt to  bring  a  case  involving  the 
right  to  the  elective  franchise  before  a 
court  of  law,  was  a  high  breach  of  the 
privileges  of  tlieir  House:  and  they  pro- 
ceeded so  far  as  to  order  that  Mr.  Mead, 
(Ashby's  attorney,)  and  the  plaintiffs  in 
several  similar  actions,  should  be  taken 
into  custody.  Paty,  one  of  these  plain- 
tiffs, sued  out  a  habeas  corpus  ta  the 
keeper  of  Newgate,  who  returned  the 
Speaker's  warrant  of  commitment.  On 
argument  upon  this  return,  Powell, 
Powys,  and  Gould,  JJ.,  held,  against  the 
opinion  of  Lord  Chief  Justice  Holt,  that 
they  had  no  authority  to  discharge  the 
prisoner.  On  this  decision  Paty  pro- 
posed to  bring  a  writ  of  error,  for  which 
lie  applied,  and  the  judges  being  sum- 
moned to  deliver  their  opinion,  whether 
a  writ  of  error  was  a  writ  of  right,  or  of 
grace,  ten  of  them  were  of  opinion  that 
it  was  of  right,  except  in  treason  and 
felony.  The  parliament  was,  however, 
prorogued  beforelhe  writs  were  issued, 
but  not  before  the  House  of  Commons, 
who  appear  to  have  been  actuated  by 
great  indignation,  had  committed  Mr. 
Caesar,  the  cursitor,  for  neglecting  to 
inform  them  what  writs  of  error  were 
applied  for,  and  had  also  directed  the 


ASHBY    V.     WHITE     ET     ALIOS. 


267 


Serjeant  at-arms  to  take  into  custody 
Mr.  Montagu,  Mr.  Letchmere,  Mr.  Den- 
ton, and  Mr.  Page,  who  had  been 
counsel  for  tlie  prisoners  on  the  return 
of  the  habeas  corpus.  Mr.  Montagu  and 
Mr.  Denton  were  accordiugly  apprehend- 
ed, and  the  serjeant-at-arms  infornied 
the  House  "that  he  had  also  like  to 
have  taken  Mr.  Nicholas  Letchmere, 
but  that  he  iiad  got  out  of  his  chambers 
in  the  Temple,  two  pair  of  stairs  high, 
r*iQQT  ^^  '^'i'^  ^^'^^  window,  by  the  *help 
L  ^'''''-1  of  his  sheets  and  a  rope."  This 
gentleman  was  afterwards  attorney-gen- 
eral. Writs  of  habeas  corpus  were 
served  on  the  serjeant-at-arms  on  be- 
half of  Mr.  Montagu  and  Mr.  Denton, 
but  the  House  forbid  iiim  to  make  any 
return  thereto.  At  last  after  two  con- 
ferences between  the  Houses,  which 
served  only  to  widen  the  breaeh,  the 


Queen  put  an  end  to  the  dispute  by  pro- 
roi^uing  parliament. 

In  the  course  of  these  discussions  the 
Lords  appointed  a  committee  fur  the 
purpose  of  preparing  an  argument  in  the 
shape  of  a  report  upon  the  proceedmgs 
in  the  case  of  Ashby  v.  White.  This 
argument  was  principally  drawn  up  by 
the  Lord  Chief  Justice  and  contains  a 
masterly  disquisition  upon  all  the  sub- 
jects connected  with  the  case.  It  is 
printed  entire  in  the  note  by  Mr.  Gale 
above  referred  to,  and  consists  of  three 
parts:  firstly,  it  is  argued  that  the 
plaintiff  had  a  right  to  vote;  secondly, 
that  if  so,  he  must  as  a  necessary  con- 
sequence, as  an  inseparable  incident  to 
his  right,  have  a  remedy  to  assert  and 
maintain  it;  thirdly,  that  his  proper 
remedy  was  that  which  he  had  pursued, 
viz.  by  action. 


Case  is  maintainable  whenever  the  plaintiff's  right  has  been  injured, 
(more  accurately,  where  the  exercise  or  enjoyment  of  his  right  has  been 
hindered,)  by  the  act  of  another,  and  that  act  was  not  necessary  to  the 
defendant's  full  enjoyment  of  his  own  rights,  or  the  legal  pursuit  of  them. 

The  principle,  that  where  the  injury  is  general,  or  common  to  many,  no 
action  lies,  seems,  Avhen  properly  understood,  not  to  form  an  exception  ;  as, 
in  case  of  a  nuisance  in  a  highway  :  the  individual  here  has  not  an  interest 
or  vested  right ;  the  easement  is  legally  in  the  king,  or  the  public  generally, 
and  these  are  the  parlies  to  sue,  which  is  by  indictment ;  but  if  any  indi- 
vidual's right  of  person  or  property  are  injured,  directly  or  consequentially, 
by  reas-on  of  the  nuisance,  an  action  lies  for  him.  See  Proprietors  of  Quincy 
Canal  v.  Newcomb,  7  Metcalf,  277.  283.  Thus  it  was  decided  in  Hughes 
V.  Heiser,  1  Binney,  463,  that  where  one  dams  a  river  that  is  a  public 
highwa)%  and  the  plaintiff  coming  down  with  rafts,  is  prevented  by  the  dam 
from  descending  the  river,  the  interruption  is  actionable,  for  it  is  a  conse- 
quential injury  to  his  interests  or  rights  of  property.  See  Pittsburgh  v. 
Scott,  1  Barr,  309.  319.  It  would  seem  that  the  legal  notion  of  an  injury, 
general,  or  common  to  many,  such  as  is  not  actionable,  is  that  the  thing 
injured  or  interrupted  is  a  privilege  open  generall)%  or  to  many,  and  not  a 
particular  vested  right.  In  Owen  v.  Henman,  1  Watts  &  Sergeant,  548, 
an  action  was  brought  for  disturbing  the  plaintiff  in  this  enjoyment  and 
exercise  of  public  worship,  by  making  loud  noises,  reading,  talking,  &c., 
and  it  was  decided  that  the  action  was  not  maintainable,  for  here  was  no 
right  of  the  plaintiff's  of  person  or  property  injured,  and  the  injury  was  of 
a  spiritual  and  not  temporal  nature,  and  besides,  was  general  or  common  to 
everybody. 

The  proprietors  of  lands  adjoining  streams,  have  a  right  to  use  reason- 
ably the  water,  subject  to  a  similar  right  in  other  riparian  owners  ;  and 
therefore,  if  one  by  erecting  a  mill,  and  using  reasonably  the  water,  leave 


268  SMITHS     LEADING     CASES. 

less  for  one  below  him,  though  the  latter  be  a  prior  occupant,  this  is  not 
actionable,  for  no  right  of  the  plaintiff  is  invaded,  and  the  act  is  necessary 
to  the  defendant's  enjo3'ment  of  his  own  rights.  Palmer  and  others  v. 
Mulligan  and  others,  3  Caine's  307;  Piatt  v.  Johnson  &  Root,  15  John- 
son, 213;  Weston  v.  Alden,  8  iVIassachusetts,  136;  Beissell  v.  Sholl,  4 
Dallas,  211.  See  Gary  v.  Daniels,  8  Metcalf,  467.  So  in  those  rivers 
where  the  right  of  fishing  is  public,  the  erection  of  a  dam,  which  prevents 
the  fish  from  coming  up,  is  not  actionable  by  a  private  proprietor  of  the 
adjoining  soil,  for  "  he  had  no  property  either  in  the  fish  or  the  river." 
See  Shrunk  v.  The  President,  &c.  of  the  Schuylkill  Navigation  Company, 
14  Sergeant  &  Rawle,  71.  84.  But  if  one,  by  erecting  a  dam,  overflows 
his  neighbour's  land,  he  injures  a  particular  vested  right  of  that  person,  and 
does  what  is  not  necessary  to  the  enjoyment  of  his  own  limited  and  specific 
rio-ht ;  and  however  small  the  damage,  it  is  actionable.  Alexander  and 
another  v.  Kerr,  2  Rawle,  83  ;  and  see  Sackrider  v.  Beers,  10  Johnson,  24, 
and  Merritt  v.  Parker,  Coxe,  460  :  nay,  as  the  injury  is  to  a  right,  which 
is  property,  and  there  is,  necessarily,  legal  damage,  the  plaintiff  may 
recover  judgment,  though  no  special  damage  at  all  be  shown  :  Pastorius 
V.  Fishjr,  I  Rawle,  27  ;  Alexander  v,  Kerr,  2  Rawle,  83  ;  Ripka  v. 
Sergeant,  7  Watts  &  Sergeant,  11  ;  Woodman  et  al,  v.  Tufts  et  al.,  9  New 
Hampshire,  88.  The  maxim  de  minimis  non  curat  lex,  is  never  applied 
to  the  positive  and  wrongful  invasion  of  another's  property ;  The  Seneca 
Road  Company  v.  The  Auburn,  &.c.  Rail  Road  Company,  5  Hill,  171. 
175. 

To  corrupt  and  poison  a  stream  by  a  tannery,  is  actionable  by  those 
whose  right  to  the  use  of  the  stream  is  injured.  Howell  and  others  v. 
M'Coy,  3  Rawle,  256  ;  and  it  is  said  in  this  case,  that  the  plaintiff's  right 
of  action  is  gone,  if  there  have"  been  an  appropriation  for  twenty  years,  or 
a  contract ;  and  it  is  held  in  M'Kellip  v.  M'llhenny,  4  Watts,  317,  that  if 
there  has  been  a  valid  contract,  or  a  parol  license  for  the  same,  or  a  former 
owner,  which  has  been  acted  on,  so  that  the  revocation  of  it  would  be  a 
fraud,  it  confers  a  right. 

With  regard  to  all  these  rights  in  streams,  though  prior  occupancy  gives 
no  right  at  all,  yet  it  seems  to  be  settled  that  uninterrupted,  exclusive  occu- 
pancy in  a  particular  manner  for  twenty  or  twenty-one  years,  amounts  to  a 
binding  presumption  of  a  right  ;  Ingraham  v.  Hutchinson,  2  Connecticut, 
584  ;  Bullen  v.  Runnels,  2  New  Hampshire,  255  ;  Tyler  and  others  v. 
Wilkinson  and  others,  4  Mason,  397  ;  Cowell  v.  Thayer,  5  Metcalf,  253. 
256;  Sirickler  and  another  v.  Todd,  10  Sergeant  &  Rawle,  63;  Hoy  v. 
Sterrett,  2  Watts,  337,  where  the  cases  are  collected  ;  but  see  Cooper  and 
another  v.  Smith,  9  Sergeant  &  Rawle,  26.  In  Parker  &  Edgarton  v. 
Foote,  19  Wendell,  309,  the  nature  of  the  presumption  in  these  cases  of 
incorporeal  interests,  is  very  ably  explained  by  Bronson,  J.  ;  and  as  to  the 
nature  of  the  occupancy,  he  says,  "To  authorise  the  presumption,  the 
enjoyment  of  the  easement  must  not  only  be  uninterrupted  for  the  period  of 
twenty  years,  but  it  must  be  adverse,  not  by  leave  or  favour,  but  under  a 
claim  or  assertion  of  right  ;  and  it  must  be  with  the  knowledge  and  acqui- 
escence of  the  owner." 

That  there  may  be  a  ricrht  to  have  lights  opening  on  another's  ground,  is 
decided  in  Story  v.  Odin,  12  Massachusetts,  157.  That  this  exclusive  right, 


BIRKMYR     V.     DARNELL.  269 

invading  the  property  of  another,  may  be  acquired  by  uninterrupted  user 
for  a  sufficiently  long  period,  was  said  by  Duncan,  J.,  in  Strickler  and 
another  v.  Todd  ;  but  strong  doubts  were  opened  upon  this  subject  by 
Gould,  J.,  in  Ingraham  v.  Hutchinson  ;  and  Rogers,  J.,  in  Hoy  v.  Ster- 
rett :  and  in  Parker  &  Edgarton  v.  Foote,  19  Wendell,  309,  it  was  decided 
by  a  majority  of  the  Supreme  Court  of  New  York,  that  the  English  doc- 
trine of  a  right  to  lights,  overlooking  another's  ground,  acquired  by  long 
user,  upon  a  presumption  of  a  grant  or  otherwise,  is  inapplicable  to  this 
country,  and  does  not  exist  in  our  law.  See  Atkins  v.  Chilson  and  others, 
7  Metcalf,  398. 

H.  B.  W. 


*BIRKMYR  V.  DARNELL.  [*134] 


MICH.— 3  ANNE  B.  R. 
[reported  salkeld  27. (a)] 

A  promisie  to  answer  for  the  debt,  default,  or  miscarriage  of  another,  for  which  that  other 
remains  liable,  must  be  in  writing  to  satisfy  the  Statute  of  Frauds.  Contra,  where  the 
other  dues  not  remain  liable. 

Declaration.  That  in  consideration  the  plaintiff  would  deliver  his 
gelding  to  A.,  the  defendant  promised  that  A.  should  re-deliver  him  safe, 
and  evidence  was,  that  the  defendant  undertook  that  A.  should  re-deliver 
him  safe  ;  and  this  was  held  a  collateral  undertaking  for  another :  for, 
where  the  undertaker  comes  in  aid  only  to  procure  a  credit  to  the  party,  in 
that  case  there  is  a  remedy  against  both,  and  both  are  answerable  according 
to  their  distinct  engagements  ;  but,  where  the  whole  credit  is  given  to  the 
undertaker,  so  that  the  other  party  is  but  as  his  servant,  and  there  is  no 
remedy  against  him,  this  is  not  a  collateral  undertaking.  But  it  is  other- 
wise in  the  principal  case,  for  the  plaintiff  may  maintain  detinue  upon  the 
bailment  against  the  original  hirer,  as  well  as  an  assumpsit  upon  the  pro- 
mise against  this  defendant. 

Et  per  cur.  If  two  come  to  a  shop,(*)  and  one  buys,  and  the  other,  to 
gain  him  credit,  promises  the  seller.  If  he  does  not  pay  you,  I  will,  this  is 
a  collateral  undertaking,  and  void  without  writing,  by  the  Statute  of  Frauds. 

(a)  Mod.  Cases,  248,  S.  C.  by  name  of  Bour  Kamire  v.  Darnell. 

(*)  In  such  a  case,  the  question  to  which  of  tlie  two  was  credit  given,  is  generally  left  to 
the  determination  of  the  jury,  who,  in  deciding  it,  must  take  into  their  consideration  all  the 
circumstances  of  the  case.  Keate  v.  Temple,  1  B.  «fe  P.  158  ;  Darnell  v.  Trott,  1  C.  &  P. 
82  ;  Storr  v.  Scott,  6  C.  &  P.  241.  If.  on  production  of  the  plaintiff's  books,  it  appear  the 
defendant  was  not  originally  debited  there,  that  is  strong  evidence  that  he  is  but  a  surety, 
but  it  is  not  conclusive.     Keate  v.  Temple,  Croft  v.  SmaUvvood,  1  Esp.  121. 


270 


SMITHS     LEADING     CASES. 


But  if  he  says,  Let  him  have  the  goods,  I  ivUl  be  your  paymaster,  or  / 
will  see  you  paid,  this  is  an  undertaking  as  for  himself,  and  he  shall  be 
intended  to  be  the  very  buyer,  and  the  other  to  act  but  as  his  servant. 


The  fourth  section  of  the  Statute  of 
Frauds  enacts,  that  "No  action  shall  be 
brought  whereby  to  charge  any  execu- 
tor or  administrator  upon  any  special 
r^,or,-]  promise  *to  answer  damages 
■-  -1  out   of  his   own    estate  ;   or  to 

charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default, 
or  miscarriage  of  another  person  ;  or  to 
charge  any  person  upon  any  agreement 
made  in  consideration  of  marriage ;  or 
upon  any  contract,  or  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest 
in  or  concerning  them;  or  upon  any 
agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the 
making  thereof;  unless  the  agreement 
upon  which  such  action  shall  be  brouglit, 
or  some  memorandum  or  note  thereof^ 
shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully 
authorized." 

The  present  case  turned,  as  we  have 
just  seen,  on  the  meaning  of  the  words 
"upon  any  special  promise  to  answer 
for  the  debt,  default,  or  miscarriage  of 
another  person  ;"  and  the  distinction 
here  taken  has  ever  since  been  held  the 
true  one,  and  is  clearly  explained,  and 
all  the  subsequent  cases  discussed,  in 
the  notes  to  Forth  v.  Stanton,  1  Wms. 
Saunders,  211,  to  which  the  reader  is 
referred  ;  and  where  the  following  rule, 
which  is  in  substance  the  very  same 
with  that  in  Birkmyr  v.  Darnell,  is  laid 
down  for  the  purpose  of  distinguishing 
between  the  cases  which  do  and  those 
which  do  not  fall  within  the  statute. 
"  The  question  is.  What  is  the  promise  ? 
— is  it  a  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another,  for 
which  thai  other  remains  liable  ? — not 
what  the  consideration  for  that  promise 
is:  for  it  is  plam  that  the  nature  of  the 
consideration  cannot  aflect  the  terms  of 
the  promise  itself,  unless  as  in  the  case 
of  Goodman  v.  Chase,  1  B.  &  A.  297,  it 
be  an  extinguishment  of  the  liability  of 
the^  original  party."  In  that  case  the 
defendant,  in  consideration  that  the 
plaintiff  would  disciiarge  A.  B.,  whom 
he  had  taken  under  a  capias  ad  satisfa- 


ciendum, promised  to  pay  A.  B.'s  debt. 
It  was  held  unnecessary  that  the  pro- 
mise should  be  in  writing,  for  the  defen- 
dant's liability  on  his  promise  could  not 
begin  till  the  plaintiff  had  discharged 
A.  B.  out  of  custody,  since  that  dis- 
charge was  made  a  condition  precedent ; 
but,  the  moment  A.  B.  was  discharged, 
his  liability  was  at  end,  so  that  the  de- 
fendant was  never  liable  for  a  debt  of 
A.  B. ;  the  debt  had  ceased  to  be  due 
from  A.  B.  before  the  defendant  became 
liable  to  pay  it.  So  also  in  Bird  v.  Gam- 
mon, 3  Bing.  N.  C.  889,  the  defendant, 
in  consideration  that  plaintiff  would  with 
Lloyd's  other  creditors,  give  up  their 
claims  against  Lloyd,  and  that  Lloyd's 
farm  should  be  assigned  to  the  defend- 
ant, undertook  to  pay  the  plaintiff,  this 
was  held  not  to  be  a  promise  to  pay  the 
debt  of  a  third  party,  for  Lloyd  ceased 
to  be  liable.  (See  Good  v.  Cheeseman, 
2  B.  &  Ad.  328,  and  tiie  notes  to  Cum- 
ber V.  Wane,  post.)  But  where  A.  as 
attorney  for  B.,  sued  C,  and  it  was 
agreed  that  the  suit  should  be  put  an 
end  to,  and  that  C.  should  pay  A.  the 
costs  due  by  B.,  this  was  held  within 
the  statute.  Tomlinson  v.  Gell,  G  A.  & 
E.  5G4. 

When  it  is  settled  that  the  promise  is 
one  to  answer  for  the  deht,  default,  or 
miscarriage  of  another,  within  the 
moaning  of  the  statute  ;  or,  to  use  Lord 
Holt's  expression  in  the  text,  that  it  is  a 
collateral,  noi  d.n  original  ^ivonn^e;  the 
next  question  that  occurs  is,  what  must, 
in  order  to  satisfy  the  act,  appear  in  the 
writing  thereby  required!  Now,  the 
act,  in  terms,  requires  that  the  agree- 
ment, or  some  memorandum  or  note 
thereof,  shall  be  in  writing  ;  and  it  is 
held  that  the  word  agreement  compre- 
hends both  a  consideration  and  a  pro- 
mise ;  and  that  both  these  must,  there- 
fore, appear  in  the  writing.  This  was 
determined  in  the  celebrated  case  of 
Wain  V.  Warlters,  5  East,  10,  in  which 
an  action  of  assumpsit  was  brought  on 
the  following  guaranty: — 
"  Messrs  Wain  &  Co. 

"I  will  engage   to  pay  you,  by  half- 
past  four     this    day,    fifty-six    pounds 


BIRKMYR     V.     DARNELL. 


271 


and  expenses  on  bill,   that  amount  on 
Hall. 

"  JolinWarlters. 

"2Cornhil],  April  30, 1803." 

The  Court  of  King's  Bench  held  that 
this  was  not  sufficient,  inasmuch  as  it  did 
not  state  the  consideration  for  Warlter's 
promise.  "  The  words  of  the  statute," 
said  Mr.  J.  Grose,  "are,  that  no  action 
shall  be  brought,  whereby  to  charge  the 
defendant  on  any  special  prondse  to 
answer  for  the  debt,  &,c.,  of  another 
person,  &.C.,  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof, 
shall  be  in  writing,  &c.  What  is  re- 
quired to  be  in  writing,  therefore,  is  the 
agreement,  not  the  promise  as  mention- 
ed in  the  first  clause,  or  some  note  or 
memorandum  of  the  agreement.  Now 
the  agreement  is,  that  which  is  to  show 
which  each  party  is  to  do  or  perform, 
and  by  which  both  parties  are  to  be 
bound,  and  this  is  required  to  be  in  wri- 
ting. If  it  were  only  necessary  to  show 
what  one  of  them  was  to  do,  it  would 
be  sufficient  to  state  the  promise  made 
by  the  defendant  who  was  to  be  charged 
with  it.  But  if  we  were  to  adopt  this 
construction,  it  would  be  the  means  of 
letting  in  those  very  frauds  and  perju- 
ries, which  it  was  the  object  of  the  statute 
|-^,„p-|to  *prevent,  for,  without  the 
L  -I  parol  evidence,  the  defendant 
cannot  be  charged  upon  the  written  con- 
tract, for  want  of  a  consideration  in  law 
to  support  it.  The  effect  of  the  parol 
evidence  then  is  to  make  him  liable  ; 
and  thus  he  would  be  charged  with  tlie 
debt  of  another  by  parol  testimony,  when 
the  statute  was  passed  with  the  very 
intent  of  avoiding  such  a  charge,  by  re- 
quiring that  the  agreement,  by  which 
must  be  understood  the  whole  agree- 
ment, should  be  in  writing." 

This  case  having  been  frequently 
doubted,  was  at  last  confirmed  by  iSaun- 
ders  V.  Wakefield,  4  B.  &  A.  .59tj.  The 
guaranty  on  which  that  action  was 
brought,  was  as  follows: — 

"  Mr.  Wakefield  will  engage  to  pay 
the  bill  drawn  by  Pitman  m  favour  of 
Stephen  Saunders." 

This  instrument,  being  set  out  in  the 
replication  to  a  plea  of  the  statute,  was 
held  upon  demurrer  to  be  insufficient. 
The  doctrine  of  Wain  v.  Warlters  was 
on  that  occasion  affirmed,  and  has  never 
since  been  doubted.  See  Jenkins  v. 
Reynolds,  3  B.  &  B.  14  ;  Morley  v. 
Boothby,  3   Bing.  107  ;  Whitcombe  v. 


Lees,  5  Bing.  34  ;  Cole  v.  Dyer,  1  C.  &, 
J.  461;  1  Tyrwh.  307;  Wood  v.  Ben- 
son,  2  Tyrwh.  98;  Bushell  v.  Bevan,  1 
Bing.  N.  C.  103;  Hawes  v.  Armstrone, 
Ibid.  701  ;  Ellis  v.  Levi,  Ibid.  767; 
James  v.  Williams,  5  B.  &  Ad.  1109; 
Clancy  v.  Pigott,  2  Ad.  &l  EH.  473. 
But  it  is  sufficient  if  the  consideration 
can  be  gathered  by  a  fliir  intendment 
from  the  whole  tenor  of  the  writing,  not 
that  a  mere  conjecture,  however  plausi- 
ble, would  be  sufficient  to  satisfy  the 
statute,  buttiiere  must  be  a  well-ground- 
ed inference  to  be  necessarily  collected 
from  the  terms  of  the  memorandum. 
See  the  judgments  of  Tindal,  C.  J.,  in 
Hawes  v.  Armstrong,  and  of  Patteson, 
J.,  in  James  v.  Williams,  5  B.  &.  Ad., 
1109.  And  it  is  observable,  that  when 
an  agreement  is  in  its  nature  prospec- 
tive, such  an  inference  is  much  more 
easily  arrived  at,  than  when  it  is  in  its 
nature  retrospective.  For  instance,  in 
Stapp  V.  Lill,  1  Camp.  242;  9  East, 
348,  the  f()llowing  guaranty  was  held 
first  by  Lord  Ellenborough  at  Nisi  Prius, 
and  afterwards  by  the  Court  of  King's 
Bench,  in  banc,  to  be  sufficient: 

"  I  guarentee  the  payment  of  any 
goods  which  Mr.  John  Stapp  shall 
deliver  to  Mr.  Nicholls,  of  Brick- 
lane. 

"  John  Lill." 

It  was  thought  sufficiently  to  appear 
from  this  instrument  that  the  promise  of 
Lill,  the  defendant,  W'as  intended  to 
operate  as  an  inducement  to  Stnipp,  the 
plaintiff,  to  deliver  the  goods  to  Nicholls  ; 
and  if  so,  the  delivery  of  them  to 
Nicholls,  at  the  defendant's  request, 
would,  of  course,  be  a  good  conidera- 
tion  for  the  defendant's  undertaking  to 
guarantee.  See  Newberry  v.  Armstrong, 
6  Bing.  201 ;  Russell  v.  Moseley,  3  B. 
&B  211;  Morris  v.  Stacey,  Holt,  N. 
P.  C.  153  ;  Ryde  v.  Curtis,  8  D.  &  R. 
62;  Ex  parte  Gardom,  1.5  Ves.  287; 
Combe  v.  Woolf,  8  Bing.  1-37.  In  Short- 
rede  v.  Cheek,  1  Ad.  &  E.  .')9,  where  a 
guaranty  was  expressed  to  be  in  con- 
sideration that  the  plaintiff  "  would 
withdraw  the  promissory  note,"  the 
Court  of  King's  Bench  held  that  it  was 
sufficiently  certain,  and  that  parol  evi- 
dence was  admissible  to  show  what  pro- 
missory note  was  meant. 

Provided  that  the  agreement  be 
reduced  to  writing  according  to  the 
above  rules,  it  matters  not  out  of  how 
many  different  papers  it  is  to  be  collect- 
ed, so  long  as  they  can   be  sufficiently 


272 


SMITHS     LEADING     CASES. 


connected  in  sense.  Jackson  v.  Lowe, 
1  Bing.  9;  Pliillimore  v.  Barry,  1  Camp. 
513  ;  Saunderson  v.  Jackson,  2  B.  *&  P. 
398;  Allen  v.  Bennett,  3  Taunt.  169; 
Dobcll  V.  Hutchinson,  3  Ad.  &  Ell.  355. 
See  Johnson  v.  Dodgson,  2  Mee.  &, 
Welsh.  653.  But  this  connexion  in 
sense  must  appear  upon  the  documents 
themselves,  for  parol  evidence  is  not 
admissible  for  the  purpose  of  connecting 
them. 

That  was  one  of  the  principal  points 
decided  in  Boydell  v.  Drummond,  11 
East,  152.  which  arose  upon  this  section 
of  the  act,  although  the  instrument  there 
sued  upon  was  not  a  guaranty.  In  that 
case  the  plaintiff  proposed  to  publish  a 
magnificent  edition  of  Shakspeare, 
illustrated  by  seventy-two  engravings, 
which  were  to  come  out  in  numbers,  at 
three  guineas  per  number,  two  of  which 
were  to  be  paid  in  advance,  each  number 
was  to  contain  four  engravings  ;  "  one 
number  at  least  was  to  be  published 
annually,  and  the  proprietors  were 
confident  that  they  should  be  able  to 
produce  two  numbers  in  the  course  of 
every  year.''  These  proposals  were 
r*T^71  ^P'^i'ited  in  a  prospectus  and  lay 
L  ^"^'-l  in  the  plaintiff's  shop.  The 
plaintiff  also  kept  a  book,  which  had 
for  its  title,  "  Shakspeare  subscrib- 
ers, their  signatures ;''  but  did  not 
refer  to  the  prospectus.  The  defendant 
determining  to  become  a  subscriber  to 
the  work,  signed  his  name  to  the  book 
containing  the  list  of  subscribers,  but 
afterwards  refusing  to  continue  to  lake 
it  in,  though  he  had  received  and  paid 
for  some  few  numbers,  this  action  was 
brought  against  him  to  compel  him  to 
complete  his  contract.  This  court  de- 
cided, 1st,  That  the  agreement  was  one 
not  to  be  performed  within  the  space  of 
a  year  from  the  making  thereof;  that  it 
was  therefore  within  the  4th  section  of 
the  statute  of  frauds,  and  it  was  neces- 
sary that  there  should  be  a  note  or 
memorandum  of  it  in  writing,  signed  by 
the  defendant.  See  the  notes  to  Peter 
V,  Compton,  post,  143.  2ndly,  They 
held  that  though  the  prospectus  con- 
tained the  terms  of  the  agreement,  and 
would  be  sufficient  memorandum  thereof 
if  it  could  be  coupled  with  the  book  in 
which  the  defendant  signed  his  name  ; 
still,  as  it  contained  no  reference  to  the 
book,  nor  the  book  to  it,  there  v/as  no 
connexion  in  sense  between  them  which 
would  enable  the  court  to  couple  them 
together  and  treat  them  as  one  docu- 


ment. And  3dly,  tliey  held  that  such 
connexion  could  not  be  introduced  by 
parol  evidence,  but  must,  in  order  to 
satisfy  the  statute,  appear  upon  the 
face  of  the  documents  themselves.  They 
also  held  that  the  part  performance 
which  had  taken  place  made  no  differ- 
ence. It  does  not  signify  to  whom  the 
memorandum  containing  the  agreement 
is  addressed.  It  may  be  contained  in  a 
letter  to  a  third  person.  Per  Lord 
Hardwicke, '3  Atk.  503;  2  Cha.  Rep. 
147;  1  Vernon,  110;  Bateman  v.  Phil- 
lips, 15  East,  272 ;  Longfellow  v. 
Williams,  Peake's  Add.  Ca.  225.  The 
reason  of  this  is,  that  the  meniorandnra 
is  necessary  only  to  evidence  the  con- 
tract, not  to  constitute  it.  The  contract, 
as  was  observed  by  Tindal,  C.  J.,  in 
Laythroap  v.  Bryant,  2  Bing.  N.  C.  744, 
is  made  before  any  signature  thereof  by 
the  parties. 

With  respect  to  the  signature,  it  is 
only  necessary  that  the  memorandum 
should  be  signed  by  the  party  against 
whom  it  is  sought  to  enforce  the  con- 
tract. Laythroap  v.  Bryant,  2  Bing.  N. 
C.  744.  It  was  objected  in  that  case, 
which  arose  on  a  contract  to  sell  lands, 
that  unless  the  agreement  wore  signed 
by  both  parties,  there  would  be  a  want 
of  mutuality,  as  the  party  who  signed 
would  be  bound,  and  the  party  who  had 
not  signed  would  be  loose,  and  so  that 
there  would  be  no  consideration  for  his 
agreemenr.  "  But,"  said  the  Lord  Chief 
Justice,  "whose  fault  is  that"?  The 
defendant  might  have  required  the 
plaintiff's  signature,  but  the  object  of 
the  statute  was  to  secure  the  defen- 
dant's." The  preamble  runs,  "  for 
prevention  of  many  fraudulent  practices, 
which  are  commonly  endeavoured  to  be 
upheld  by  perjury,  and  subornation  of 
perjury;  and  the  whole  object  of  the 
legislature  is  answered,  when  we  put 
this  construction  on  the  statute.  Here, 
when  this  party  who  has  signed  is  the 
party  to  be  charged,  he  cannot  be 
subject  to  any  fraud.  And  there  has 
been  a  little  confusion  in  the  argument 
between  the  consideration  of  an  agree- 
ment and  mutuality  of  claims.  It  is 
true  that  the  consideration  must  appear 
upon  the  face  of  the  agrement.  '  Wain 
V.  Warlters,  was  decided  on  the  express 
ground  that  an  agreement  under  the 
fourth  section  imports  more  than  a 
bargain  under  the  seventeenth ;  but  I 
find  no  case,  nor  an}"-  reason  for  saying 
that  the  signature  of  both  parties  is  that 


BIRKMYR    V.    DARNELL. 


273 


which  makes  the  agreement.  The 
agreement  is  in  truth  made  before  any 
signature." 

The  words  attributed  in  the  text  of 
the  principal  case  to  the  court,  who  are 
made  to  say  that  a  collateral  undertak- 
ing is  void,  without  writing,  by  the 
statute  of  frauds,  are  too  strong,  if 
literally  understood ;  for  the  act  does 
not  direct  that  the  promise  shall  be  void, 
but  that  "no  action  shall  be  brought" 
upon  it;  and  Bosanquet,  J.,  remarks,  in 
Laythroap  v.  Bryant,  that  the  seven- 
teenth section  is  in  this  respect  stronger 
than  the  fourth,  for  the  seventeenth 
avoids  contracts  not  made  in  the  man- 
ner there  prescribed.  Accordingly, 
though  no  action  can  be  brought  upon  a 
parol  guaranty,  the  courts  have  been 
known  to  enforce  one  against  an  attor- 
ney, by  virtue  of  their  summary  juris- 
diction over  their  own  officers,  see 
r  :i:-ioa  1  *Evan3  V.  Duncan,  1  Tyrwh. 
•-  ^ -•  2S3;  Senior  v.  Butt;  and 
Payne  v.  Johnson,  there  cited.  How- 
ever, it  is  not  necessary  in  order  that 
the  statute  should  apply  that  the  action 
should  be  brought  on  the  agreement ;  it 
is  enough  if  the  effect  of  the  action  is  to 
"  charge"  the  defendant  by  means  of  the 
agreement.  Thus  in  Carrington  v. 
Roots,  2  M.  &  W.  218,  trespass  for 
asportative  of  a  cart,  plea  removal  of  it 
damage-feasant,  replication  that  defen- 


dant had  sold  a  crop  of  grass  to  plaintiff 
with  liberty  to  take  it  quare,  &c.,  tra- 
verse of  agreement ;  parol  evidence  of 
such  a  sale  was  held  inadmissible,  and 
plaintiff  nonsuited. 

When,  to  an  action  brought  upon  a 
guaranty  or  other  instrument  falling 
within  the  fourth  section  of  the  statute 
of  frauds,  the  defendant  pleads  that  there 
is  no  such  note  or  memorandum  in 
writing  as  that  act  requires,  it  is  unne- 
cessary to  set  out  the  memorandum  in 
the  replication,  though  once  it  was  con- 
sidered unsafe  not  to  do  so.  Wakeman 
V.  Sutton,  2  Ad.  &  Ell.  78;  Lysaght  v. 
Walker,  2  Bligh,  N.  S.  1.  Nor  is  it 
necessary,  in  declaring  on  such  an 
instrument,  to  state  it  to  have  been  in 
writing.  Anon.  Sal.  519;  per  Yates, 
J.,  3  Burr.  1890.  For  it  is  a  general 
rule  in  pleading,  that  when  a  statute 
regulates  the  mode  of  performing  an 
act  which  was  valid  at  common  law,  the 
same  certainty  of  allegation  is  sufficient 
after  the  statute  as  before;  but  it  has 
been  said  to  be  otherwise  in  a  plea. 
Case  V.  Barber,  T.  Raym.  450 ;  and 
quaere,  and  see  Peacock  v.  Purvis,  2  B. 
&  B.  362,  where  a  sale  of  growing  crops 
was  pleaded,  witliout  any  averment 
tliat  it  was  in  writing,  and  held  suffi- 
cient, thougii  Case  v.  Barber  was  cited 
and  relied  on. 


When  a  contract  is  in  its  nature  joint,  of  course,  any  number  of  persons 
may  be  bound  by  the  liability  it  imposes;  but  when  that  liability  was 
evidently  intended  at  the  time  to  be  single,  in  order  to  determine  whether  a 
parol  promise  to  assume  it,  made  simultaneously  with  the  contract,  is  within 
the  statute  of  frauds,  and  consequently  void,  we  must,  agreeably  to  the 
principle- stated  above,  inquire  whether  the  party  on  whom,  independently 
of  the  promise,  such  liability  would  rest,  still  continues  bound  by  it,  or  not. 
If  he  so  continue,  then  the  assumption  is  of  the  debt  of  another,  and  within 
the  statute.  Leonard  v.  Vredenburgh,  8  Johnson,  29  ;  Gallager  v.  Brunei, 
6  Cowen,  346;  Tileston  v.  Nettleton,  6  Pick.  509;  Blake  v.  Parlin,  22 
Maine,  395;  Aldrich  v.  Jewell,  12  Vermont,  125;  Elder  v.  Warfield,  7 
Harris  &  Johnson,  391.  In  the  words  of  Shaw,  C.  J.,  as  reported  in  Cahill 
V.  Bigelow,  18  Pick.  369,  when  the  promise  is  made  at  the  time  of  credit 
given,  "  the  test  to  decide,  whether  the  party  promising  is  an  original 
debtor,  or  merely  a  guarantor  is,  whether  credit  was  given  to  the  party 
receiving  the  goods  ?"  «'  If  it  was,  then  such  promisor  is  a  guarantor  only, 
undertaking  to  pay  another's  debt.  But  if  no  credit  was  given  to  the  person 
receiving  the  goods,  then  as  the  promisor  is  himself  debtor  for  goods  sold 
to  him  and  delivered  to  another  person,  by  his  order,  his  promise  is  not  to 

Vol.  l— 18 


274  SMITHS    LEADING    CASES. 

pay  the  debt  of  another,  and  a  parol  promise,  being  made  upon  a  good  con- 
sideration, is  a  good  contract  at  common  law,  and  binds  him,  and  is  not 
within  the  statute  of  frauds." 

The  contract  of  a  factor  who  sells  goods  under  a  del  credere  commission, 
might  have  been  supposed  to  come  within  the  limits  of  the  statute  of  frauds, 
as  thus  defined ;  but  the  point  has  been  held  the  other  way  in  the  recent 
case  of  Wolff  v.  Koppel,  5  Hill,  458,  on  the  ground  that  such  a  contract  is 
to  be  regarded  as  a  positive  undertaking  by  the  factor  to  sell  only  to  parties 
who  are  entirely  solvent,  a  breach  of  which  necessarily  renders  him  liable 
for  the  full  value  of  the  goods  to  his  principal. 

The  character  of  the  obligation  imposed  by  a  promise  to  pay,  for  a  con- 
sideration flowing  to  another,  cannot,  however,  in  all  cases,  be  determined, 
by  examining  whether  credit  was  given  to  the  party  whose  engagement  the 
promise  is  intended  to  guarantee,  and  whether  he  remains  primarily  liable 
on  his  engagement.  -  Even  where  the  two  promises,  that  of  the  principal 
debtor,  to  whom  the  consideration  moves,  and  that  of  which  the  validity  is 
brought  in  question  under  the  statute  of  frauds,  are  not  joint,  it  does  not 
follow  that  the  latter  is  merely  collateral  to  the  former,  for  even  under  those 
circumstances,  in  the  words  of  Story,  J.,  in  De  Wolf  v.  Rabaud,  1  Peters, 
476,  the  contract  may  be  trilateral ;  and  such  must  be  regarded  as  the  case, 
when  a  distinct  credit  is  given  to  each  of  the  promisors,  though  the  conside- 
ration flows  directly  to  one.  They  must  be  regarded  "  not  as  joint-con- 
tractors on  the  same  contract,  but  as  separate  contractors,  upon  co-existing 
contracts,  forming  parts  of  the  same  general  transaction."  This  doctrine 
was  applied  in  the  subsequent  case  of  Townsley  v.  Sumral,  2  Peters,  170, 
to  a  promise  by  the  defendant,  to  accept  bills  to  be  drawn  on  him  by  B.  in 
favour  of  the  plaintiff;  and  it  was  held  not  to  be  within  the  statute  of 
frauds,  though  the  consideration  of  such  promise  was  shown  to  be  advances  / 
of  money  or  goods,  made  by  the  plaintiff  to  B.,  on  which  B.  was  originally, 
and  still  continued  liable.  A  verbal  promise  by  A.,  if  C.  would  advance 
money  to  B.,  to  repay  it  to  C,  was  said  in  this  case  not  to  be  within  the 
statute. 

It  would  seem  undoubted  law  that  there  may  be  a  joint  contract  by  two  to 
pay  for  goods  (o  be  delivered,  only  for  the  use  and  behoof  of  one  ;  and  under 
such  circumstances,  as  both  are  primarily  liable,  the  undertaking  of  neither 
can  be  held  to  be  for  the  debt  of  another.  Wainwright  v.  Straw,  16  Ver- 
mont, 215.  But  in  the  recent  case  of  Carville  v.  Crane,  5  Hill,  483,  where 
on  the  authority  of  the  dicta,  in  De  Wolf  v.  Rabaud,  an  attempt  was  made 
to  support  a  declaration,  averring  that  in  consideration  of  the  sale  of  goods 
by  the  plaintiff"  to  a  third  person,  the  defendant  had  promised,  but  not  in 
writing,  that  he  would  endorse  a  promissory  note,  to  be  given  for  the  price, 
it  was  determined,  that  the  undertaking  was  in  fact  for  the  debt  of  another, 
and  that  the  doctrine  of  two  distinct  and  co-existing  contracts  could  not  be 
sustained  for  the  purpose  of  taking  it  out  of  the  operation  of  the  statute. 
An  agreement  that  the  defendant  would  endorse  an  instrument  for  the  pay- 
ment of  the  debt,  was  held  to  be  as  much  within  the  scope  of  the  statute  as 
the  assumption  of  a  more  direct  liability,  and  the  case  was  distinguished 
from  a  promise  to  accept  a  bill  drawn  for  the  price  of  goods  sold  to  a 
stranger,  on  the  ground  that  thp  promisor  there  engages  to  become  the 
principal  debtor.     But  in  Bushell  v.  Bevan,  1  Bing.  N.  C.  103,  where  the 


BIRKMYR    V.     DARNELL.  275 

defendant  had  verbally  undertaken  to  procure  the  signature  of  a  third  party 
to  a  written  guaranty  of  the  debt  of  a  stranger,  it  was  decided  that  an  action 
might  be  supported  for  a  breach  of  the  promise;  although  as  the  instrument 
to  which  it  related  was  void  under  the  statute  as  expressing  no  considera- 
tion, the  recovery  could  only  be  for  nominal  damages. 

A  promise  to  indemnify  the  plaintiff  for  entering  into  an  agreement  to 
discharge  the  debt  of  another,  is  not  within  the  statute  of  frauds.  Chapin 
V.  Merrill,  4  Wend.  657;  Harrison  v.  Sawlel,  10  Johnson,  242  ;  Chapin 
V.  Lapham,  20  Pick.  467.  In  such  cases,  the  debt  or  default  out  of  which 
the  defendant's  liability  is  to  arise,  is  to  a  stranger  and  not  to  the  plaintiff; 
and,  therefore,  the  demand  on  which  suit  is  brought  by  the  latter,  and  that 
against  the  original  debtor,  form  two  wholly  distinct  causes  of  action.  Peck 
y.  Thompson,  15  Vermont,  637  ;  Holmes  v.  Knight,  16  New  Hampshire, 
175. 

But  where  as  between  two  parties,  both  standing  in  the  relation  of  sure- 
ties to  the  principal  debtor,  the  law  will  not  imply  a  promise  of  contribution 
or  indemnity  from  one  to  the  other ;  it  has  been  held  that  a  mere  verbal 
agreement  to  that  effect  is  within  the  statute  of  frauds,  and,  therefore,  inope- 
rative. Thus,  where  a  bill  drawn  jointly  and  severally  by  three  persons 
had  been  accepted  for  the  accommodation  of  one  of  the  number,  with  the 
knowledge  that  the  others  were  sureties,  it  was  decided  that  the  implied 
promise  raised  by  law  to  indemnify  the  acceptor,  did  not  extend  beyond 
the  principal  drawer,  and  that  an  agreement  to  extend  the  obligation  to  the 
sureties  was  void,  if  not  reduced  to  writing.     Wing  v.  Terry,  5  Hill,  160. 

The  promise  of  a  party  to  pay  a  debt,  on  which  he  has  once  been  per- 
sonally liable,  cannot  be  treated  as  within  the  statute,  although  at  the  time 
of  making  the  promise,  his  responsibility  has  ceased.  Thus,  a  promise  to 
pay  the  note  of  another,  on  which  the  promisor  was  once  bound  as  indorser, 
although  since  discharged  for  want  of  notice,  will  be  valid  though  not  in 
Avriting.  Hopkins  v.  Liswell,  12  Mass.  52.  In  like  manner,  where  the 
guaranty  of  the  engagement  of  another,  accompanies  an  assignment  made 
by  the  guarantor,  in  discharge  of  his  own  debt,  it  is  no  longer  a  collateral 
undertaking  nor  wn'thin  the  statute.  Johnson  v.  Gilbert,  4  Hill,  178  ;  Har- 
graves  v.  Parsons,  13  M.  &  W.  561. 

In  Massachusetts,  the  courts  appear  to  have  considered  the  time  of  making 
the  promise,  as  only  material  with  respect  to  the  consideration  required, 
which  must,  when  the  debt  has  already  been  contracted,  be  something  other 
than  the  debt  itself;  and  as  being  entirely  immaterial  with  respect  to  the 
operation  of  the  statute  of  frauds.  Whatever  be  the  consideration,  or  the 
time  of  the  promise  to  pay  the  debt  of  another,  if  that  debt  so  subsist  as  to 
give  a  ground  of  suit,  the  case  is  held  as  coming  within  the  direct  words  of 
the  statute,  and  the  promise  void,  if  not  in  writing. 

Thus  in  Loomis  v.  Newhall,  15  Pick.  166,  where  the  plaintiff  sought  to 
render  the  defendant  liable,  on  a  parol  promise  to  pay  for  what  had  been  or 
should  be  furnished,  for  the  board  of  an  adult  son,  the  court,  after  holding 
that  the  promise  to  pay  for  the  board  already  furnished,  would  have  been 
void,  both  under  the  statute  and  for  want  of  consideration,  had  not  the  sub- 
sequent supplies  given  on  the  credit  of  such  promise,  raised  a  good  conside- 
ration for  the  whole  contract ;  went  on  to  determine,  that  such  full  conside- 
ation,  although  both  new  and  distinct,  could  in  no  case  withdraw  even  a 


276  SMITHS    LEADING     CASES. 

subsequent  promise,  from  the  operation  of  the  statute  of  frauds,  where  the 
original  debt  still  remained  due  from  the  original  debtor.  The  construction 
which  the  court  put  upon  the  act,  and  which  they  supported  by  a  review  of 
the  English  authorities,  was  forcibly  illustrated  by  the  opinion  which  they 
afterwards  expressed,  that  if,  up  to  the  date  of  the  promise  by  the  father,  the 
supplies  furnished  to  the  son  were  mere  matters  of  charily,  and  so  no  debt 
from  him,  the  father  would  be  liable  ;  since  his  promise  would  not  have 
been  to  answer  for  the  debt  of  another.  A  similar  point  was  also  taken  by  the 
court,  in  Chapin  v.  Lapham,  above  cited,  where  the  minority  of  the  principal 
debtor  was  relied  on,  for  the  purpose  of  showing  that  credit  must  have  been 
given  to  the  defendant,  and  that,  consequently,  he  was  the  only  person  liable 
to  the  plaintiff  for  the  debt.  In  like  manner,  where  the  plaintiff  agreed  to 
permit  his  debtor,  who  had  promised  to  pay  his  debt  in  labour  for  him,  to 
continue  in  the  employ  of  the  defendant,  a  promise  being  given  by  the 
latter  to  pay  such  debt,  although  the  consideration  was  new,  and  the  pro- 
mise subsequent  to  the  debt,  the  case  was  held  within  the  operation  of  the 
statute  of  frauds.     Stone  v.  Symmes,  18  Pick.  467. 

In  a  recent  case,  however,  (he  Supreme  Court  of  Massachusetts  expressed 
the  opinion,  that  if  a  promise  to  pay  for  the  precedent  debt  of  another,  was 
made  upon  a  beneficial  consideration,  moving  to  the  promisor,  and  enuring 
to  his  own  use  and  behoof,  and  not  merely  the  ease  and  advantage  of  the 
debtor,  it  would  be  witliout  the  statute  of  frauds  ;  and  cited,  as  an  instance 
of  the  application  of  this  doctrine,  the  case  of  Williams  v.  Leiper,  3  Bur- 
rows, 1886,  where  a  recovery  had  been  sustained  on  a  parol  promise  by 
a  broker,  to  pay  the  debt  of  a  third  person,  in  consideration  of  the  with- 
drawal of  a  ]evy  on  his  goods,  which  the  broker  had  been  previously 
employed  to  sell.  Nelson  v.  Boynton,  3  Metcalf,  396.  401.  This  language 
would  appear  to  be  inconsistent  with  the  principles  previously  laid  down  by 
the  same  tribunal,  in  Stone  v.  Symmes;  but  the  decisions  actually  given 
upon  the  evidence  before  the  court,  was  in  accordance  with  that,  and  with 
the  previous  cases.  In  consideration  of  a  verbal  promise  made  by  a  son, 
to  discharge  the  debt  of  a  father,  the  plaintiff  had  discontinued  an  action 
brouo-ht  for  the  recovery  of  the  debt,  and  thereby  dissolved  an  attachment 
laid  upon  the  real  estate  of  his  debtor.  The  present  suit  having  been 
brought  against  the  son,  to  enforce  the  performance  of  this  promise,  it  was 
held,  that  the  advantage  of  the  consideration  moved  to  the  debtor,  not  to  the 
promisor,  and  that  the  latter  was  discharged  by  the  statute.  As  the  import- 
ance attached  in  this  case  to  the  question,  whether  the  benefit  has  flowed  to 
the  promisor  or  the  debtor,  rests  merely  on  the  dicta  of  the  court,  and  is 
opposed  both  by  the  argument  and  the  decision  in  Stone  v.  Symmes,  we 
may  presume  that  the  law  established  there,  and  in  Loomis  v.  Newhall, 
still  continues  in  force  in  Massachusetts,  and  that,  whether  a  parol  promise 
to  pay  the  debt  of  another,  be  supported  by  a  consideration  moving  to  the 
debtor  or  the  promisor,  the  latter  will  not  be  liable,  if  the  original  debt  still 
continues  to  subsist  as  a  cause  of  action  against  the  original  debtor. 

This  doctrine  is  fully  supported  by  the  case  of  Sinclair  v.  Richardson,  12 
Vermont,  33.  The  plaintiff,  who  had  been  employed  by  a  contractor  to 
build  a  house  on  the  land  of  the  defendant,  declared,  after  beginning  the 
work,  that  unless  the  latter  wt)uld  pay  for  it,  he  would  go  no  further  in  the 
undertaking.     The  defendant  thereupon  promised  to  pay  for  the  house 


BIRKMYR    V.     DARNELL.  277 

when  completed,  and  it  was  finished  accordingly  by  the  plaintiff,  who 
now  sued  for  the  price.  It  also  appeared  that  the  plaintiff  had  gone  on 
with  the  work,  in  rehance  upon  the  promise  thus  given,  but  without 
any  agreement  with  his  first  employer  to  rescind  the  original  contract. 
Under  these  circumstances,  the  court  were  of  opinion,  that  although  the 
prior  agreement  could  not  have  been  rescinded  without  the  concurrence  of 
both  the  parties,  and  was  still  subsisting  and  might  be  enforced  against  the 
plaintiff,  he  was,  notwithstanding,  entitled  to  waive  and  abandon  all  farther 
proceedings  under  it,  and  to  enter  into  a  new  and  distinct  undertaking  with, 
another  person  for  the  performance  of  the  same  or  any  other  piece  of  work. 
They  also  held,  that  the  new  promise  was  necessarily  invalid  if  the  plain- 
tiff retained  his  right  of  suit  on  the  former  contract,  since  in  that  case  the 
engagement  entered  into  by  the  defendant  would  appear  to  have  been  col- 
lateral and  merely  for  the  fulfilment  of  an  obligation  still  binding  on  another. 
It  was  therefore  decided  that  the  case  should  be  left  to  the  jury  on  this 
point  of  waiver,  and  that  there  could  he  no  recovery  by  the  plaintiff  unless 
it  were  found  that  his  demand  under  the  original  contract  was  wholly  reUn- 
qulshed  at  the  time  of  accepting  the  new  undertaking  from  the  defendant. 
A  similar  decision  had  previously  been  made  by  the  same  tribunal  in  the 
case  of  Anderson  v.  Davis,  9  Vermont,  136,  where  the  exact  principle 
determined  was  illustrated  by  the  decision  of  the  court,  that  the  testimony 
of  the  original  contractor  was  not  admissible  in  support  of  the  action,  since 
the  success  of  the  plaintiff  would  necessarily  involve  the  discharge  of  the 
party  thus  offered  as  a  witness. 

In  New  York,  on  the  other  hand,  in  Farley  v.  Cleveland,  4  Cowen,  439, 
Savage,  C  J.,  held  that,  "  when  there  is  a  new  and  original  consideration, 
of  benefit  to  the  defendant,  or  harm  to  the  plaintiff,  moving  to  the  party 
making  the  promise,  the  subsisting  liability  of  the  original  debtor,  is  no 
objection  to  the  recovery."  In  a  great  number  of  other  cases  in  that  state, 
it  has  equally  been  determined  that  a  parol  promise  to  pay  a  previously 
subsisting  debt,  given  on  a  new  and  distinct  consideration,  is  not  within  the 
statute  of  frauds,  even  where  the  original  debt  continues  to  subsist  after  the 
promise.  Leonard  v.  Vredenburg,  8  Johns.  29.  Myers  v.  Moore,  15  Id. 
425.  Olmsted  v.  Greely,  18  Id.  12.  Farley  v.  Cleveland,  4  Cowen,  439, 
S.  C.  432,  in  Error,  9  Cowen,  639.  Ellwood  v.  Monk,  5  Wend.  235. 
Mercein  v.  Mack,  10  Wend.  461.  Slingerland  v.  Morse,  7  Johnson,  463. 
Shelton  v.  Brewster,  "8  Id.  376. 

Thus  it  appears  that,  in  addition  to  the  exemption  from  the  statute  admit- 
ted in  Massachusetts,  Vermont,  and  where  the  original  debt  is  extinguished 
as  to  the  former  debtor,  another  of  different  character  is  created  in  New  York, 
in  all  cases  where,  from  the  distinct  nature  of  the  consideration,  a  new  debt 
may  be  considered  as  imposed  on  the  party  who  makes  the  parol  promise, 
although  without  extinguishing  the  former  debt,  foj  the  payment  of  which 
it  is  made.  It  is  not,  however,  true  in  all  cases,  that  a  subsequent  "con- 
sideration though  new  and  original,"  will  take  a  promise  to  discharge  a  pre- 
existing debt  out  of  the  statute  of  frauds,  according  to  the  law,  as  settled  in 
New  York.  If  the  promise  and  consideration  are  of  a  character,  to  imply 
a  contract  of  absolute  liability,  on  the  part  of  the  promisor,  then  agreeably  to 
the  cases  just  cited,  no  writing  is  required  to  give  it  validity.  On  the  other 
hand,  though  on  a  consideration  equally  good,  if  the  promise  appear  from 


278  SMITHS     LEADING     CASES. 

the  nature  of  the  consideration,  or  from  its  own  terms,  merely  an  engage- 
ment to  pay  the  debt,  in  case  of  the  default  or  miscarriage  of  the  other 
party,  and  to  be,  in  fact,  a  guaranty,  and  not  a  separate  and  distinct  under- 
taking, then  the  case  will  fall  within  the  statute  of  frauds.  Rogers  v.  Knee- 
land, "l3  Wendell,  114,  In  determining  this  point,  as  to  whether  the  new 
promise  to  pay  a  previously  subsisting  debt,  be  a  distinct  undertaking  on 
the  part  of  the  promisor,  to  satisfy  the  debt  as  his  own,  and  not  as  that  of 
another,  the  New  York  courts  appear  to  have  regarded  the  nature  of  the 
consideration  as  material,  and  to  have  determined,  that  where  it  is  merely 
of  forbearance  against  the  original  debtor,  although  valid  as  a  consideration, 
the  promise  which  it  supports  will  be  within  the  statute.  Larson  v.  Wyman, 
14  Wend.  246.      Watson  v.  Randall,  20  Wendell,  201. 

But  in  the  earlier  cases  of  Simpson  v.  Patten,  4  Johns.  422,  and  Jackson 
V.  Rayner,  12  Johns.  291,  the  Supreme  Court  of  New  York  appear  to  have 
held  the  doctrine  advanced  in  Massachusetts  in  Loomis  v.  Newhall,  and  to 
have  been  of  opinion,  that  whatever  the  consideration  of  a  promise  to  pay  the 
previously  subsisting  debt  of  another,  such  promise  would  be  within  the  sta- 
tute of  frauds,  if  the  previous  debt  still  continued  to  exist.  Moreover,  the  opin- 
ion of  Savage,  C.  J.,  as  expressed  in  Larson  v.  Wyman,  is  rather  difficult  to 
reconcile  wnth  the  language  employed  by  the  same  authority  in  Farle)?^  v. 
Cleveland.  On  the  whole,  the  law  as  collected  from  the  New  York  cases, 
would  appear  to  be,  that  when  the  promise  to  pay  the  debt  of  another,  is 
subsequent  to  the  time  at  which  the  debt  arose,  the  consideration  being  so  far 
new  and  distinct,  as  to  be  valid,  independently  of  the  debt,  and  the  contract, 
in  its  whole  bearing,  as  gathered  both  from  the  promise  and  consideration, 
imposes  a  separate  and  individual  liability  on  the  promisor,  so  that  the 
promisee,  by  its  intent,  may  proceed  either  against  him,  or  the  original 
debtor,  the  statute  of  frauds  will  not  apply.  On  the  other  hand,  the  consi- 
deration of  the  new  promise  has  its  whole  foundation  in  the  old  debt,  as 
when  it  is  merely  a  promise  of  forbearance,  and  the  contract  which  such 
promise  creates,  does  not  give  a  separate  cause  of  action  against  the  pro- 
misor, apart  from  the  original  debtor,  so  that  both  may  be  made  severally 
liable;  the  provisions  of  the  statute  of  frauds  will  applj'^  with  full  force. 
Simpson  v.  Patten,  4  Johns.  422.  Jackson  v.  Rayner,  12  Id.  291.  Rogers 
V.  Kneeland,  13  Wend.  114.  Larson  v.  Wyman,  14  Id.  246.  Watson  v. 
Randall,  20  Id.  201. 

It  must  however,  be  admitted,  that  these  distinctions  rest  on  grounds  some- 
what vao-ue  and  unsatisfactorj^,  and  that  there  would  appear,  consistently 
with  principle,  to  be  no  middle  course,  between  deciding  that  a  parol  promise 
to  pay  the  still  continuing  debt  of  another,  is  invalid,,  and  holding  valid,  un- 
der the  doctrine  laid  down  by  Savage,  C.  J.,  all  such  promises,  when  made 
on  a  new  and  sufficient  consideration,  although  merely  of  forbearance. 
This  latter  course  has  been  taken  in  Maine,  where  it  has  been  decided,  that 
a  promise  to  pay  the  antecedent  debt  of  another  for  a  new  consideration, 
thoutrh  merely  of  forbearance,  is  an  original  undertaking,  and  not  within  the 
statute.  Russell  v.  Babcock,  14  Maine,  140.  At  the  same  time  it  is  evi- 
dent, that  this  construction  as  to  antecedent  debts,  virtually  abrogates  the 
statute  of  frauds ;  since  a  promise  to  pay  them,  if  not  made  on  some  new 
consideration,  is  void  at  common  law,  as  bt;ing  on  no  consideration  at  all. 
Indeed,  if  it  were  generally  applied  to  debts  antecedent  to  the  promise,  and 


PRICE     V.     THE     EARL     OF     TORRINOTON.  279 

the  doctrine  contended  for  by  Story,  J.,  in  De  Wolf  v.  Rabaud,  1  Peters, 
499,  to  those  contracted  at  the  same  time,  the  statute  would  be  excluded 
from  all  practical  operation.  Perhaps  in  the  conflict  of  opinion  with  regard 
to  the  true  meaning  of  the  fourth  section  of  the  statute  of  frauds,  those  stales 
where,  as  in  Penn'sylvania,  its  provisions  are  not  in  force,  may  find  reason 
to  be  satisfied  in  not  being  exposed  to  the  influence  of  that,  which  would 
appear  so  difficult  to  be  reconciled  in  practice,  with  the  every-day  course  of 
business. 


*PRICE  V.  THE  EARL  OF  TORRINGTON,    [    *139 

TRIN.— 2  ANNE.— CORAM  HOLT,  C.  J.,  AT  GUILDHALL, 

[reported  salkeld,  285.] 

In  an  action  for  beer  sold  and  delivered,  in  order  to  prove  the  delivery,  a  book  was  put  in, 
containino-  an  account  of  the  beer  delivered  by  the  plaintitf's  draymen,  and  which  it 
was  tlie  dlity  of  the  draymen  to  si-^m  daily.  The  drayman  who  had  signed  the  account 
of  beer  doHvered  to  the  defendant  being  dead,  the  book  was  admitted  in  evidence,  on 
proof  of  his  handwriting. 

The  plainliir  being  a  brewer,  brought  an  action  against  the  Earl  of  Tor- 
rington  for  beer  sold  and  delivered,  and  the  evidence  given  to  charge  the 
defendant  was,  that  the  usual  way  of  the  plaintiff's  dealing  was,  that  the 
draymen  came  every  night  to  the  clerk  of  the  brew-house,  and  gave  him  an 
acfcount  of  the  beer  they  had  delivered  out,  which  he  set  down  in  a  book 
kept  for  that  purpose,  to  which  the  draymen  set  their  names,  and  that  the 
drayman  was  dead,  but  that  this  was  his  hand  set  to  the  book  ;  and  this  was 
held  good  evidence  of  a  delivery  ;  otherwise  of  the  shop-book  itself  singly, 
without  more. (a) 


The  books  supply  repeated  instances  a  gratuitous  charge  against  himself, 
in  which  the  entries  of  a  deceased  per-  knowingly  against  his  own  interest,  and 
son,  contrary  to  his  own  interest,  have  without  any  equivalent,  repels  every 
been,  after  his  death,  received  as  evi-  supposition  of  fraud.  A  disposition  to 
dence  of  the  facts  stated  by  him  in  those  commit  fraud  would  have  tempted  him 
entries.  But  the  decisions  in  the  prin-  to  suppress  altogether  the  fact  of  his 
cipal  case  seem  hardly  to  range  itself  having  received  any  thing,  or  to  misre- 
within  that  class  of  authorities,  for,  as  present  the  amount  of  the  sum,  bnt  not 
remarked  by  Mr.  Phillips,  in  his  "  Law  to  mis-state  the  ground  *or  con-  r*i4Qj 
of  Evidence,"  such  a  declaration  by  a  sideration  upon  which  it  was  re- 
tradesman's  servant  as  that  made  by  the  ceived  ;  that  is,  not  to  mis-state  the  only 
drayman  in  Price  v.  Lord  Torrington,  is  fact  sought  to  be  established  by  the  pro- 
clearly  distinguishable  from  entries  in  posed  evidence.  On  the  other  hand,  the 
the  book  of  a^'receiver,  who,  by  making  declaration  of  the  tradesman's  servant 

(a)  Sal.  690.     lb.  283.     Mod.  Cases,  264.     2  Lord  Raym.  873. 


280 


SMITH     S     LEADING     CASES. 


is  given  in  evidence  to  prove  the  fact  of 
delivery,  and  as  he  gives  the  account 
not  against  his  own  interest,  which  is 
some  security  for  the  truth  of  the  state- 
ment in  the  other  case,  the  probability 
of  his  account  being  true  or  false  is 
neither  greater  or  less  than  the  proba- 
bility of  his  being  honest  or  dishonest, 
which  is  nothing  more  than  may  be  said 
in  every  case  of  hearsay.  The  circum- 
stance of  his  thereby  acknowledging  the 
receipt  of  goods,  which,  it  may  be  said, 
would  be  evidence  in  an  action  against 
him,  seems  to  amount  to  littleor  nothing. 
It  was  the  least  he  could  say.  To  have 
said  nothing  at  all  would,  as  he  must 
have  known,  necessarily  lead  to  in- 
quiry. _ 

Price  V.  Lord  Torrington  falls  within 
the  class  of  cases  thus  described  by  Mr. 
Justice  Taunton.  "  A  minute  in  writ- 
ing, made  at  the  time  when  the  fact  it 
records  took  place,  by  a  person  since 
deceased,  in  the  ordinary  course  of  his 
business,  corroborated  by  other  circum- 
stances, which  render  it  probable  that 
the  fact  occurred,  is  admissible  in  evi- 
dence." Doe  v.  Turford,  ii  B.  &.  Ad. 
898.  In  that  case,  a  landlord  instructed 
B.  to  give  the  defendant  notice  to  quit, 
and  B.  communicated  it  to  his  partner 
P.,  who  having  prepared  threa  notices 
toquit,  iwoofthem  to  be  served  on  other 
persons,  and  three  duplicates,  went  out, 
returned  in  the  evening,  and  delivered 
to  B.  three  duplicates,  one  of  which  was 
a  duplicate  of  the  notice  to  the  defen- 
dant indorsed  by  P.  It  was  proved  that 
the  other  notices  were  xlelivered  as  in- 
tended, that  the  defendant  had  after- 
wards requested  not  to  be  compelled  to 
quit,  and  that  it  was  the  invariable  prac-  ' 
tice  of  the  clerks  of  B.  &P.,  w^ho  usually 
served  the  notices  to  quit,  to  indorse,  on 
a  duplicate  of  such  notice,  a  memoran- 
dum of  the  fact  and  time  of  service.  The 
duplicate  in  question  was  so  indorsed  ; 
and  it  was  admitted,  after  the  death  of 
P.,  to  prove  the  service  of  the  third  notice 
on  the  defendant. 

The  former  cases  on  this  subject  will 
be  found  cited  and  discussed  in  Doe  v, 
Turford,  it  will  therefore  be  unnecessary 
to  advert  to  them  at  length  in  this  note. 
See  Pitman  v.  Maddox,  2  Salk.  690; 
Hagedorn  v.  lleid,  3  Camp.  379;  Champ- 
neys  v.  Peck,  1  Stark.  404 ;  Pritt  v. 
FairclouErh,  3  Camp.  305,  et  notas.  In 
Poole  v.Dicas,  1  Bingh.  N.  C.  649,  a 
bill  became  due  and  was  left  with  a 
notary    to    demand    payment ;    M.   the 


notary's  clerk  went  out,  returned,  and, 
in  one  of  the  notary's  books  into  which 
the  bill  had  been  previously  copied,  wrote 
in  the  margin  no  effects ;  another  clerk 
made  a  similar  entry  in  another  book 
from  M.'s  dictation  ;  all  this  was  done 
in  the  regular  course  of  business :  the 
court  held  that  after  the  death  of  M.  the 
entry  made  by  him  was  admissible  to 
prove  the  dishonour  of  the  bill.  "  We 
think  it,"  said  Tindal,  C.  J.,  "  admissi- 
ble, on  the  ground  that  it  was  an  entry 
made  at  the  time  of  the  transaction,  and 
made  in  the  usual  course  and  routine  of 
business,  by  a  person  who  had  no  interest 
to  mis-state  what  had  occurred." 

Mr.  J.  Parke,  in  delivering  his  judg- 
ment in  Doe  v.  Turford,  remarks  a  dis- 
tinction between  the  admissibility  of  an 
entry  of  this  description,  and  of  an  entry 
admitted  in  evidence  because  against 
the  interest  of  the  party  making  it.  "  It 
is  to  be  observed,"  said  his  lordship, 
"that  in  case  of  an  entry  falling  under 
the  rule  as  being  an  admission  against 
interest,  proof  of  the  handwriting  of  the 
party  and  his  death  is  enough  to  autho- 
rise its  reception ;  at  whatever  time  it 
was  made,  it  is  admissible.  But  in  the 
other  case,  it  is  essential  to  prove  that  it 
was  made  at  the  time  it  purports  to  bear 
date ;  it  must  be  a  contemporaneous 
entry."     3  B.  &  Ad.  898. 

An  entry  admissible  after  the  maker's 
death  because  made  in  the  course  of 
businass  is,  however,  evidence  of  those 
things  only  which,  according  to  the 
course  of  that  business,  it  was  the  duty 
of  the  deceased  person  to  enter.  In 
Chambers  v.  Bernasconi,  1  Tyrwh.  342, 
4  Tyrwli.  531,  in  error,  a  distinction 
was  engrafted  upon  the  rule  laid  down 
in  Doe  v.  Turford.  In  that  case  it  be- 
came material  to  ascertain  the  place  at 
Avhich  one  Chambers  had  been  arrested. 
The  under-sheriff  of  Middlesex  being 
called  produced  the  writ,  and  stated  that 
by  the  course  of  his  office  the  bailiff 
*making  an  arrest  was  required  r*i4-ii 
immediately  afterwards  to  trans-  ^  -' 
mit  to  the  ofnce  a  memorandum  or  cer- 
tificate of  the  arrest,  and  that  for  the 
last  few  years  an  account  of  the  place 
where  the  arrest  took  place  had  also 
been  required  from  him ;  it  was  then 
proved  that  the  bailitf  who  arrested 
Chambers  was  deceased,  and  the  follow- 
ing memorandum  in  his  handwriting, 
taken  from  tlie  files  of  the  office,  was 
tendered  in  evidence  to  prove  the  place 
where  lie  made  the  arrest. 


PRICE  V.  THE  EARL  OF  TORRINGTON. 


281 


"9  November,  lS-25. 

"I  arrested  A.  II.  Chambers  the  eliler 
only  in  South  Molton  Street,  at  the  suit 
of  William  Breretoii. 

"  Thomas  Wright." 

The  memorandum  was  held  by  the 
Court  of  Exchequer  inadmissible  for  the 
purpose  for  which  it  was  offered,  and 
afterwards  in  the  Exchequer  Chamber 
whither  the  point  was  carried  by  a  bill 
of  exceptions.  "  The  ground,"  said 
Lord  Denman,  C.  J.,  delivering-  the 
judgment  of  the  Exchequer  Chamber, 
"  on  which  the  Attorney  General  first 
rested  his  argument  for  the  plaintiff  in 
error  was  not  much  relied  on  by  him, 
viz.  that  the  certificate  was  an  admi-ssion 
against  the  interest  of  the  party  making 
it,  because  it  renders  him  liable  for  the 
body  arresied.  He  had  recourse  to  a 
much  broader  principle,  and  laid  it  down 
as  a  rule,  that  an  entry  made  by  a  per- 
son deceased,  in  the  course  of  his  duty, 
where  he  had  no  interest  in  stating  an 
untruth,  is  to  be  received  as  proof  of  the 
fact  stated  in  the  entry,  and  of  every 
circumstance  therein  described  which 
would  naturally  accompany  the  fact 
itself  The  discussion  of  this  point  in- 
volved the  general  principle  of  evidence, 
and  a  long  list  of  cases  determined  by 
judges  of  the  highest  authority,  from 
that  of  Price  v.  Torriiigton,  before  Holt, 
C.  J.,  to  Doe  d.  Patteshall  v.  Turford, 
recently  decided  by  Lord  Tenterden  in 
the  Court  of  King's  Bench.  After  care- 
fully considering  however  all  that  was 
urged,  we  do  not  find  it  necessary,  and 
therefore  we  think  it  would  not  be  pro- 
per, to  enter  upon  that  extensive  argu- 
ment; for  as  all  the  terms  of  the  legal 
proposition  above  laid  down  are  mani- 
festly essential  to  render  the  certificate 
admissible,  if  any  one  of  them  fails  the 
plaintiff  in  error  cannot  succeed  ;  and 
tee  are  all  of  opinion  that  whatever 
pjffcct  may  be  due  to  an  entry  made  in 
the  course  of  any  office,  reporting  facts 
necessary  to  the  performance  of  a  duty, 
the  statement  of  other  circumstances, 
however  naturally  thry  may  he  thought 
to  find  a  place  in  the  narrative,  is  no 
proof  <f  those  circumstances.  Admit- 
ting then  lor  the  sake  of  argument  that 
the  entry  tendered  was  evidence  of  the 
fact,  and  even  of  the  day  when  the 
arrest  was  made,  (both  which  facts  it 
might  be  necessary  for  the  officer  to 
make  known  to  his  principal,)  we  are 
all  clearly  of  opinion  that  it  is  not  admis- 
sible to  prove  in  what  particular  spot 


within  the  bailiwick  the  caption  took 
place,  that  circumstance  being  merely 
collateral  to  the  duty  done." 

It  is  difficult,  in  perusing  this  case,  to 
avoid  remarking,  that  although  profess- 
ing to  steer  wholly  clear  of  the  doctrine 
promulgated  in  Doe  v.  Turford,  it  still 
seems  hardly  reconcilable  in  its  facts 
with  that  decision  ;  for  it  was  proved  in 
Chambers  v.  Bernasconi,  and  is  indeed 
stated  in  the  judgment  of  the  L.  C.  J., 
that  the  course  of  the  olfice  of  the  sheriff 
of  Middlesex  is,  to  require  a  return  in 
writing  of  the  arrest,  omZ  of  the  place 
where  it  is  made,  under  the  hand  of  tho 
officer  making  it.  Now  it  certainly,  in 
ordinary  parlance,  would  be  said  to  be 
the  officer's  duty  to  comply  with  the 
course  of  the  office  by  returning  the^?ace 
of  arrest,  had  he  refused  to  do  so  he 
would  probably  have  been  discharged. 
And  it  is  difficult  to  see  how  an  entry 
which  he  was  required  to  make,  and  had 
not  the  choice  of  omitting,  could  be  more 
collateral  to  his  duty  than  the  entry  of 
the  service  of  the  notice  to  quit  was  to 
that  of  the  person  making  it  in  Doe  v, 
Turford  ;  and  it  seems  obvious  that  the 
entry  oi'  the  place  of  arrest  might  prove 
of  utility  to  the  officer's  employer,  the 
sheriff;  since,  if  an  action  of  trespass 
were  brought  against  him  by  the  party 
arrested,  he  would,  in  order  to  his  de- 
fence, be  obliged  to  show  that  he  arrest- 
ed him  within  the  county  :  so  that  a 
knowledge  of  the  precise  spot  on  which 
the  caption  took  place  might  be  very 
material  and  useful  to  him.  But  what- 
ever may  be  our  opinion  *as  r^^An-i 
to  the  possibility  of  reconciling  ^  J 
Chambers  v.  Bernasconi  with  Doe  v... 
Turford,  it  may  be  safely  stated,  that  the 
former  case  has  not  shaken  the  general 
doctrme  promulgated  in  the  latter,  since 
the  attention  of  the  Court  of  Common 
Pleas  was  drawn  to  both  in  Poole  v. 
Dicas,  1  Bingh.  N.  C.  619,  where  tho 
authority  of  Doe  v.  Turford  was  expressly 
recognized  ;  and  Tindal,  C.  J.,  and  Park, 
J.»  both  stated,  that  the  decision  in 
Chambers  v.  Bernasconi  turned  wholly 
on  the  circumstance  that  the  officer  had 
gone  beyond  the  sphere  of  his  duty  in 
making  an-tmtry  of  the  place  of  arrest. 
See  Baron  de  Hutzen  v.  Farr,  4  A.  »Si 
E.  53,  in  the  report  of  which  there 
seems  to  be  some  mistake."  See  also 
Marks  v.  Lahee,  3  Bing.  N.  C.  420.  The 
declarations  of  a  deceased  witness  to  a 
deed  tending  to  show  that  he  was  con- 
cerned   in   Ibrging  it  are  inadmissible, 


282 


SMITHS    LEADING     CASES. 


Stobart  v.  Dryden,  1  Mee.  &  Welsh. 
615 ;  but  in  that  case  it  was  not  argued 
that  they  were  declarations  against  in- 
terest. [In  the  recent  case  of  Brain  v. 
Preece,  11  M.  &l  \V.  ITS,  the  admissi- 
bility of  this  kind  of  evidence  is  some- 
what limited.  In  an  action  for  the  price 
of  coals  alleged  to  have  been  sold,  it  ap- 
peared that  it  was  the  duty  of  one  H., 
who  worked  at  the  coal-pit,  to  give  no- 
tice__to  Y.,  the  foreman,  of  the  coal  which 
was  sold.  Y.  was  not  present  when  the 
coal  was  delivered,  and,  not  being  able 
to  write,  employed  a  person  of  the  name 
of  B.  to  make  entries  in  the  books  from 
what  he,  Y.,  told  him.  Both  H.  and  Y. 
were  dead  ;  but  to  prove  the  delivery  of 
the  coals,  B.  was  called  as  a  witness, 
who  produced  the  book,  and  stated  that 
he  made  it  out  from  Y.'s  directions,  and 
that  every  evening  he  read  over  the  en- 
tries to  him.  The  court  decided  that 
the  book  was  not  admissible  in  evidence. 
"  With  respect  to  the  case  of  Price  v. 


Lord  Torrington,"  said  Lord  Abinger, 
C.  B.,  in  giving  the  decision  of  the  court, 
"often  as  it  has  been  cited,  I  am  not 
aware  of  its  universal  application,  and 
I  have  known  judges  say  Uiey  would  not 
carry  the  doctrine  of  that  case  any  fur- 
ther." The  case  of  Doe  v.  Turfbrd,  he 
observed,  stands  on  precisely  the  same 
grounds  as  Price  v.  Lord  Torrington  ; 
and  Poole  v.  Dicas  was  the  case  of  a 
notary,  who  is  a  public  officer,  and  is 
sworn  to  do  his  duty  as  a  notary,  and 
was  like  any  other  case  of  a  public 
officer  who  does  anything  in  the  course 
of  business:  But  the  case  where  the 
books  are  not  written  by  the  party  him- 
self, but  at  his  supposed  dictation  by 
another  man  who  is  dead,  is  widely  dif- 
ferent. "As  regards  the  case  of  Price 
V.  Lord  Torrington,"  said  Lord  Abinger, 
"  it  is  better  to  adhere  to  that  case  as  it 
stands,  and  not  to  give  any  extension 
to  it."  See  also  Davis  v.  Lloyd,  1  C.  »Si. 
K.  275.] 


The  particular  point  in  Price  v.  Torrington  has  often  been  confirmed  in 
this  country  ;  and  it  may  be  taken  as  the  settled  law  of  all  the  states,  that 
entries  made  in  the  usual  course  of  business  by  the  plaintiff's  clerk,  are 
admissible  in  evidence  after  his  death,  on  proof  of  his  handwriting.  Lewis 
V.  Norton,  1  Washington,  76  ;  Clarke  v.  Magruder  &  al.,  2  Harris  &  John- 
son, 77  ;  Clemens  v.  Patton,  Donegan  &  Co.,  9  Porter,  289  ;  Everly  v. 
Bradford,  4  Alabama,  371  ;  &c. 

And  the  general  principle  in  Doe  v.  Turford,  as  distinct  from  the  prin- 
ciple of  entries  against  interest,  had  been  ascertained  and  estabhshed  in  this 
country  before  that  decision  was  made.  The  leading  case  is  Welsh  v. 
Barrett,  15  Massachusetts,  380,  decided  by  Chief  Justice  Parker  in  1819. 
It  was  assumpsit  on  a  promissory  note,  by  endorsee  against  endorser.  To 
prove  demand  and  notice,  the  book  of  a  deceased  messenger  of  the  bank 
where  the  note  had  been  left  for  collection,  was  offi^red.  The  cashier  proved 
it  to  be  the  book  which  the  messenger  had  kept  pursuant  to  the  regulations 
of  the  bank,  and  in  which  he  entered  his  doings  with  respect  to  notices  to 
the  makers  and  endorsers  of  notes  belonging  to  the  bank,  or  left  with  it  for 
collection.  The  by-laws  of  the  bank  made  it  part  of  his  duty  to  keep  such 
a  book,  and  he  had  taken  the  required  oath  faithfully  to  perform  his  duty. 
The  book  contained  entries  of  the  names  of  makers  and  endorsers  of  promis- 
sory notes,  and  certain  figures  and  memoranda,  which  the  cashier  testified 
were  in  the  handwriting  of  the  deceased  messenger,  and  were  the  minutes 
made  by  him  of  his  doings  with  respect  to  such  notes.  The  question  was 
argued  at  length,  [IVebster  against  the  admission  of  the  book)  :  Parker, 
C.  J.,  in  delivering  the  opinion  of  the  court  in  favour  of  the  book,  examines 
the  subject  and  the  cases  with  great  ability,  and  says;  "The  principle 
seems  to  be  founded  in  good  sense,  and  public  convenience.     What  a  man 


PRICE     V.     THE     EARL    OF     TORRINGTON.  283 

has  said  when  not  under  oath,  may  not  in  general  be  given  in  evidence, 
when  he  is  dead  ;  because  his  words  may  be  misconstrued  and  misrecol- 
lected  ;  as  well  as  because  it  cannot  be  known  that  he  was  under  any 
strong  motiv-e  to  declare  the  truth.  But  what  a  man  has  actually  done  and 
committed  to  writing,  when  under  obligation  to  do  the  act,  it  being  in  the 
course  of  the  business  he  has  undertaken,  and  he  being  dead,  there  seems 
to  be  no  danger  in  submitting  to  the  jury."  He  added,  that  the  practice 
might  safely  be  extended  to  the  proof  of  entries  made  by  a  merchant's  clerk, 
after  his  death,  in  a  case  proper  for  the  admission  of  a  merchant's  books. 
This  case  was  confirmed  and  acted  upon  in  Halliday  v.  Martinet,  20  John- 
son, 168.  This,  also,  was  assumpsit  by  endorsee  of  a  promissory  note 
against  endorser  ;  in  which,  due  diligence  in  making  demand  and  giving 
notice  was  to  be  proved.  The  protest,  and  register  of  protests,  of  a  deceased 
notary,  proved  by  his  clerk,  the  register  containing  memoranda  of  his  acts 
respecting  notices,  were  held  admissible.  The  due  diligence  in  making 
demand  seems  to  have  been  established  by  these  and  the  custom  of  the 
office  ;  and  though  the  facts  did  not  amount  to  due  diligence  in  giving  notice, 
yet  the  register  of  protests  was  deemed  evidence  of  the  facts  stated  in  it : 
and  the  court,  per  Woodworth,  C.  J.,  said,  "  If  the  notary  had  stated,  that 
the  endorsee  could  not  be  found,  as  he  has  done  with  respect  to  the  maker, 
he  would  have  made  out  sufficient  to  entitle  the  plaintiff  to  recover."  It 
may  be  proper  to  observe,  that,  this  being  a  promissory  note,  the  protest  had 
no  other  value  as  evidence,  than  an  entry  or  memorandum.  The  principle 
of  this  case  has  been  repeatedly  confirmed  in  New  York  ;  as,  in  Hart  &  al. 
v.  Wilson  &  al,  2  Wendell,  513  ;  Butler  v.  AVright,  id.  369  ;  Nichols  v. 
Goldsmith,  7  id.  160  ;  Merrill  &  al.  v.  The  Ithaca  and  Owego  R.  R.  Co., 
16  id.  587 ;  and  it  is  now  considered  a  settled  rule,  "  that  entries  and  mem- 
oranda made  in  the  usual  course  of  business,  by  notaries,  clerks,  and  other 
persons,  may  be  received  in  evidence  after  the  death  of  the  person  who 
made  them  ;"  Brewster  v.  Doane  and  another,  2  Hill's  New  York  Rep. 
537  ;   Sheldon  v.  Bentham,  4  id.  129. 

The  case  of  Welsh  v.  Barrett  is  likewise  confirmed  and  acted  upon  in 
Nicholls  V.  Webb,  8  Wheaton,  326;  an  action  of  the  same  kind  on  a  pro- 
missory note.  The  protest  by  the  deceased  notary,  and  an  extract  from  his 
book  which  was  duly  authenticated  as  a  regular  record  of  his  notarial  acts, 
were  ofl^ered  in  evidence  to  prove  demand  and  notice  ;  the  book  contained  a 
copy  of  the  note,  and  in  the  margin  this  memorandum,  "  Endorser  duly 
notified  in  writing  19lh  July,  1819,  the  last  day  of  grace  being  Sunday  the 
18th  ;"  which  was  signed  by  the  notary.  The  opinion  of  the  court,  in 
favour  of  the  evidence,  was  given  by  Story,  J. ;  he  says,  that  being  a  pro- 
missory note  in  which  the  action  of  a  notary  was  not  necessary,  the  protest 
itself  was  not  evidence  in  chief  of  the  fact  of  demand  ;  but  that  from  the 
usage  in  employing  notaries  it  may  be  inferred  that  "  the  protesting  of  notes, 
if  not  strictly  the  duty  of  the  notary,  was  in  conformity  to  general  practice, 
and  was  an  employment  in  which  he  was  usually  engaged  :"  the  subject 
is  then  examined,  and  the  case  distinguished  from  that  class  of  cases  in 
which  the  entry  charges  the  person  making  it ;  the  decision  in  Welsh  v. 
Barrett  is  cited,  and  the  judge  concludes  ;  "  We  are  entirely  satisfied  with 
that  decision,  and  think  it  is  founded  in  good  sense  and  public  convenience. 
We  think  it  a  safe  principle,  that  memorandums  made  by  a  person  in   the 


284  SMITHS     LEADING     CASES. 

ordinary  course  of  his  business,  of  acts  or  matters  which  his  duty  in  such 
business  requires  him  to  do  for  others,  in  case  of  his  death,  are  admissible 
evidence  of  the  acts  and  matters  so  done.  *  *  *  A  fortiori,  we  think 
the  acts  of  a  public  officer,  hke  a  notary  public,  admissible, 'ahhough  they 
may  not  be  strictly  official,  if  they  are  according  to  the  customary  business 
of  his  office,  since  he  acts  as  a  sworn  officer,  and  is  clothed  with  public 
authority  and  confidence." 

In  Delaware,  in  The  Bank  of  Wilmington  and  Brandywine  v.  Bradun, 
cited  in  1  Harrington,  14,  the  register  of  a  deceased  notary  was  decided  to 
be  competent  to  prove  notice,  &c.  In  Bank  of  Wilmington  and  Brandy- 
wine  V.  Cooper's  Adm'r,  id.  10,  there  is  a  valuable  remark  of  Chief  Justice 
Clayton,  which  detects  an  important  error  on  a  collateral  point  in  NichoUs 
V,  Webb  :  "  I  must  be  permitted,"  he  says,  "  to  -say  a  word  as  to  the  case 
of  Nicholls  V.  Webb,  so  far  as  it  is  considered  an  authority  to  establish  the 
point  that  the  entry  on  the  record  of  the  deceased  notary's  book,  '  that  due 
notice  was  given  to  the  endorser,'  is  to  be  taken  as  proof  that  legal  notice 
was  given.  The  book  I  would  hold  as  evidence  of  all  the  facts  it  gives  as 
to  the  time,  manner,  &c.,  of  notice,  by  reason  of  his  death.  If  we  go  fur- 
ther, we  make  the  notary  the  judge  of  what  is  legal  notice  to  fix  the 
endorser.  Now  what  is  legal  notice  is  a  question  of  law  for  the  court,  and 
not  for  the  notary.  He  should  note  the  facts,  when  he,  gave  notice;  to. 
whom  ;  the  mode,  &c.  These  are  facts,  and  his  record  would  be  sufficient 
to  prove  them;  but  the  conclusion  of  law,  whetberit  is  due  notice  or  not,  is 
for  us  to  decide,  and  not  him.  If  the  case  In  WheaXon  goes  as  far  as  it 
appears  it  did  go,  it  has  not  my  approbation  as  sound  law." 

In  Pennsylvania,  the  cases  of  Welsh  v.  Barrett  and  Nicholls  v.  Webb, 
are  recognized,  and  the  principle  regarded  as  a  settled  one,  in  Philadelphia 
Bank  v.  Officer  and  another,  12  Sergeant  &  Rawle^  49  ;  Farmers'  Bank  of 
Lancaster  v.  Whitehill,  16  Id.  89  ;  and  see  Henry  v.  Oves,  4  Watts,  46. 

In  Mississippi,  these  cases  have  been  adopted,  and  it  is  there  considered 
to  be  a  settled  principle  of  the  common  law,  that  "  a  memorandum  of  one 
who  knew  the  fact  had  no  interest  to  falsify  it,  and  which  was  made  by  him 
as  a  public  officer  in  the  regular  course  of  his  business  as  such,"  he  being 
dead,  is  admissible  evidence  ;  and  accordingly  the  written  entry  or  memo- 
randum of  a  deceased  notary,  as  to  demand  and  notice,  in  case  of  promissory 
notes,  is  received.  Ogden  v,  Glidewell  &  al.  5  Howard,  179  ;  Bodley  v. 
Scarborough  &  al,  id.  729. 

In  Maine,  a  more  interesting  case  occurs  :  in  The  Inhabitants  of  Augusta 
V.  The  Inhabitants  of  Windsor,  19  xMaine,  1  Appleton,  317,  in  assumpsit  for 
charges  incurred  bj^  plaintiffs  on  account  of  a  pauper  properly  chargeable  on 
defendants,  it  became  importanttoshowa?  tt'/j«/////»e  one  Temple  Linscott  had 
had  his  leg  broken ;  and  for  the  purpose  of  fixing  the  date,  the  plaintiffs  offered 
in  evidence, aday-book  of  Dr.  Neal  of  Gardiner,  containingtwochargesagainst 
Temple  Linscott,  one  dated  Sept.  28,  1821,  and  the  other,  Sept.  29,  of  the 
same  year,  for  reducing  a  fracture  in  his  leg  and  for  medical  attendance.  It 
was  further  proved  that  Dr.  Neal  attended  and  set  Linscott's  leg  ;  that  he 
died  in  1839  ;  that  he  was  a  regularly  practising  physician  in  1820  and 
1821  ;  and  that  the  book  introduced  was  in  his  handwritings  The  court, 
per  Shepley,  J.,  adopted  the  principle  of  Doe  v.  Turford,  and  Nicholls  v. 
Webb  ;  and  on  that  ground  decided  that  the  evidence  was  admissible. 


PRICE     V.     THE     EARL    OF     TORRINGTON.  285 

In  Alabama,  it  is  declared  to  be  a  "  principle  now  too  firmly  settled  to 
require  argument  or  illustration,  that  books  of  accounts  kept  by  a  deceased 
clerk,  and  other  entries  or  memoranda  made  in  the  course  of  business  or 
duty,  by  any  one  who  would  at  the  time  have  been  a  competent  witness  to 
the  fact  which  he  registers,  are  admissible  evidence  ;"  and  moreover,  that  if 
the  book  containing  the  original  entry  has  been  destroyed  or  lost,  a  copy, 
proved  by  the  oath  of  a  person  who  copied  it,  is  admissible  ;  and  accordingly 
a  sworn  copy,  from  the  book  of  a  deceased  warehouseman  and  weigher,  of 
an  entry  of  the  weight  of  some  bales  of  cotton,  the  book  itself  having  been 
destroye-d  in  a  fire,  was  decided  to  be  admissible  in  a  suit  between  third 
parties  ;  Batre  v.  Simpson,  4  Alabama,  306.  312. 

In  Connecticut,  in  Livingston  v.  Tyler,  14  Connecticut,  494.  499, 
entries  by  a  deceased  clerk  of  the  defendant,  of  the  quantity  of  bark  deli- 
vered at  the  defendant's  tannery,  in  a  case  where  the  plaintifl'had  kept  no 
account,  and  was  therefore  to  be  considered  as  having  acquiesced  in  the 
account's  being  kept  by  the  clerk,  in  the  character,  to  some  extent,  of  the 
agent  of  both  parties,  were  decided  to  be  admissible  evidence  of  the  quantity 
delivered  ;  within  the  principle,  that  private,  original  entries  by  third  per- 
sons, are  receivable,  when  they  have  been  made  in  the  usual  course  of  busi- 
ness, by  a  person  now  incapable  of  giving  testimony,  who  had  knowledge 
of  the  fact,  and  had  no  motive  to  misrepresent  it,  and  more  especially  when 
made  with  the  presumed  assent  of  the  person  to  be  charged  with  them. 

In  Nourse  and  Wife  v.  M'Cay  "and  another,  2  Rawle,  70,  to  show  that  a 
deed  was  a  forgery,  the  account-book  of  a  deceased  magistrate  showing 
charges  for  acknowledgments  of  three  other  deeds  on  the  same  day,  and  no 
charge  for  the  acknowledgment  of  this,  was  decided  to  be  admissible.  It  is 
obvious  that  the  ground  on  which  entries  in  the  course  of  business  are 
admitted,  is  that  as  res  gestae  they  afford  a  presumption  as  to  other  facts  : 
and  an  omission  in  a  course  of  usual  entry,  is  often  as  strong  a  fact  as  an 
entry. 

Taking  these  American  cases  together,  the  principle  derivable  from  them 
is,  that  entries  made  in  the  regular  course  of  the  person's  business  or  employ- 
ment, though  he  was  not  a  public  officer,  and  though  it  was  not  his  duty  to 
make  the  entries,  are  admissible  evidence  after  his  death. 

The  general  rule  is  that  to  render  the  entry  admissible,  the  person  who 
made  it  must  be  dead.  This  is  strictly  adhered  to  in  New  York  and  Ala- 
bama ;  and  absence  from  the  state  permanent  or  temporary,  is  not  sufficient  ; 
in  such  case,  the  person  must  be  produced,  or  his  deposition  taken.  Brew- 
ster V.  Doane  &  another,  2  Hill's  New  York  Reports,  537,  where  the  New 
York  cases  are  cited  ;  Moore  v.  Andrews  and  Brothers,  5  Porter,  107.  In 
South  Carolina,  the  handwriting  of  a  clerk  may  be  proved  if  he  is  out  of  the 
state.  Elms  v.  Chevis,  3  M'Cord,  349  ;  but  not  if  he  is  within  it,  Tunno  v. 
Rogers  and  M'Bride,  1  Bay,  480.  In  Pennsylvania,  it  is  a  settled  general 
principle,^  "  that  "  absence  from  the  state,  as  far  as  it  affects  the  admissibility 
of  secondary  evidence,  has  the  same  effect  as  the  death  of  the  witness." 
Alton  v.  Berghans,  8  Watts,  77  :  and  the  admissibility  of  entries  by  a  clerk 
who  is  out  of  the  state  or  the  jurisdiction  of  the  court,  upon  proof  of  his 
writing,  is  abundantly  settled  ;  Sterrett  v.  Bull,  1  Binney,  234.  237  ;  Crouse 
and  another  v.  Miller,  10  Sergeant  &  Rawle,  155  ;  but  as  the  subpcena  of  a 
county  court  runs  through  the  whole  state,  it  is  not  enough  that  he  is  in  a 


286  smith's   leading   cases. 

distant  county.  Hay  v.  Kramer,  2  Watts"&  Sergeant,  1.37;  Philadelphia 
Bank  v.  Officer,  12  Sergeant  &  Rawle,  49.  In  Massachusetts,  insanity  has 
been  held  to  be  equivalent  to  death.  Union  Bank  v.  Knapp,  3  Pickering, 
96 ;  and  in  case  of  auditing  a  guardian's  account  where  the  referee  had 
adopted  the  principle  of  admitting  receipts  as  evidence  of  payment,  where 
the  receiver  was  dead  or  out  of  the  state,  it  was  decided  not  to  be  ground 
of  objection. 

The  principle  of  Doe  v.  Turford  is  therefore  to  be  considered  as  well  set- 
tled in  this  country.  But  the  American  cases  appear  to  establish  another 
principle,  which  is  derived  directly  out  of  the  former,  and  is  in  fact  but  a 
more  extended  application  of  it  :  viz.  That  where  original  entries  have  been 
made  in  the  usual  course  of  business,  and  are  authenticated  as  such  by  the 
oath  of  the  person  who  made  them,  though  he  remembers  and  can  testify 
nothing  about  the  facts  recorded  in  the  entries,  such  entries  thus  verified  by 
the  oath  of  the  person  who  made  them,  are  admissible,  primary  evidence  of 
those  facts,  during  his  life. 

The  cases  involving  this  principle  are  to  be  distinguished  from  those 
which  turn  upon  a  witness's  being  allowed  to  refresh  his  memory  by  refer- 
ring to  memoranda  or  entries.  Under  the  notion  of  refreshing  the  memory 
by  looking  at  papers,  there  are  two  kinds  of  practice  :  1.  Where  the  witness 
by  referring  to  the  paper,  has  his  memory  actually  revived  and  restored,  so 
that  he  swears  to  an  actual  recollection  of  the  fact ;  and  in  this  case,  the 
paper  thus  used  may  be  one  made  after  the  transaction,  may  be  a  copy,  and 
need  not  be  produced  in  court.  2.  Where  the  witness  after  referring  to  i\j^ 
paper  undertakes  to  swear  positively  to  the  fact ;  yet  not  because  he  remem- 
bers it,  but  because  of  the  confidence  he  has  in  the  paper  ;  and,  here,  the 
paper  must  be  produced  to  the  court,  must  be  an  original,  and  made  about 
the  time  of  the  occurrence.  See  O'Neale  v.  Walton,  1  Richardson,  234.  In 
illustration  of  the  extent  to  which  this  practice  is  allowed  in  England,  and 
for  proof  that  it  is  the  oath  of  the  witness,  and  not  the  paper,  which  in  such 
cases  is  the  evidence,  see  the  case  of  Maugham  v.  Hubbard  and  Robinson, 
8  Barnewall  &  Creswell,  14,  which  may  be  found  in  2  Phillips  on  Evidence, 
894.  See  Withers  v.  Atkinson,  1  Watts,  236.  244.  The  American  cases 
require  that  the  oath  of  the  witness  from  his  paper,  in  the  second  case,  should 
be  positive,  to  the  truth  of  the  facts. 

The  distinctive  characteristic  of  both  these  latter  classes  of  cases,  is,  that 
in  both  of  them,  the  oath  of  the  party  is  the  primary,  substantive  evidence 
relied  on  ;  in  the  former  of  them,  that  oath  being  grounded  on  an  actual 
recollection,  the  means  that  have  been  used  to  stimulate  memory  are  merely 
matter  of  observation  to  the  jury  ;  in  the  latter,  it  is  still  the  oath  alone  that 
is  the  evidence,  but  being  grounded  wholly  on  the  verity  of  a  written  mem- 
orandum, the  court,  to  judge  of  the  credibility  of  the  oath  and  the  justness  of 
the  witness's  reliance,  will  have  the  paper  produced  for  inspection,  and  will 
require  it  to  be  an  original,  and  contemporary  memorandum. 

This  appears  to  be  the  limit  and  legal  signification  of  refreshing  memory  ; 
and  this  practice  differs  from  the  principle  above  stated,  as  being  involved  in 
the  American  decisions,  in  this  respect ;  that  in  one  case  the  oath  is  the 
primary  evidence,  and  this  oath  is  affected  as  to  its  credibility  by  the  nature 
and  character  of  the  memoranda  connected  with  it ;  in  the  other,  the  entries 


PRICE     V.     TUE     EARL     OF     TORRINGTON.  287 

are  the  evidence  that  goes  to  the  jury,  and  the  oath  is  only  to  verify  them 
as  being  original  and  made  in  the  course  of  business.  The  evidence  in  one 
case,  is  the  direct  testimony  of  a  witness.;  in  the  other,  it  is  the  presumption 
derived  from  the  contemporary  entry  as  part  of  the  res  gesta. 

It  has  been  attempted  to  carry  even  still  further  this  principle  of  receiving 
entries  in  evidence,  and  to  admit  any  private  memorandum  made  at  the  time 
for  the  purpose  of  perpetuating  evidence  of  the  fact,  if  verified  to  be  such  by 
the  oath  of  the  person  who  made  it  ;  though  such  person  can  state  nothing 
about  the  fact.  Tliere  is  a  powerful  argument  of  Gibson,  J.,  in  Smith  v. 
Lane,  12  Sergeant  &  Rawle,  84,  in  favour  of  this  more  extended  admission  ; 
which  however,  is  but  an  extra-judicial  opinion  of  that  judge  alone,  in  favour 
of  what  he  admits  to  be  an  innovation.  The  acute,  and  very  profound  and 
learned  author  of  the  "  Treatise  on  the  Law  of  Evidence"  appears  to  regard 
this  practice  settled  in  some  of  the  states  ;  "  The  American  courts  have  some- 
times carried  the  rule  farther  than  it  has  been  carried  in  England,  by  admit- 
ting the  writing  itself  to  go  in  evidence  to  the  jury  in  all  cases,  where  it  was 
made  by  the  witness  at  the  time  of  the  fact,  for  the  purpose  of  preserving  the 
memory  of  it,  but,  at  the  time  of  testifying,  he  can  recollect  nothing  further 
than  that  he  had  accurately  reduced  the  whole  transaction  to  writing." 
Greenleaf  on  Evidence,  484,  n.  In  Merrill  v.  The  Ithaca  and  Owego  R. 
R.  Co.  16  Wendell,  587,  there  is  a  long  extra-judicial  argument  by  Cowen, 
J.,  plainly  in  favour  of  admitting  such  entries  without  any  distinction  between 
private  memoranda  and  entries  in  the  course  of  business.  After  extracting 
the  case  of  The  State  v.  Rawls,  2  Nott  &  M'Cord,  334,  a  case  which,  as  will 
presently  be  shown,  is  misunderstood  by  him,  he  proceeds  as  follows  :  "A 
great  variety  of  American  cases  have  arisen  where  the  witness,  having 
made  the  entry  or  memorandum,  could  swear  to  his  belief  of  its  truth,  but 
had  entirely  forgotten  the  facts  which  he  recorded,  in  which  the  paper  thus 
attested  has  been  received  and  read  in  evidence  to  a  jury.  A  memorandum 
in  respect  to  a  gambling  transaction  was  so  received  against  a  criminal.  The 
State  v.  Rawls,  before  cited.  *  *  *  So  the  notes  of  evidence  by  counsel 
were  received,  though  he  could  not  remember  the  facts.  Rogers  v.  Burton, 
Peck,  108,  109.  116;  Clark  v.  Vorce,  15  Wendell,  193.  The  entry  of  a 
bank  clerk,  who  had  forgotten  the  fact.  Farmers  and  Mechanics  Bank  v. 
Boraef,  1  Rawle,  152;  of  a  notary's  clerk,  who  had  forgotten  the  fact  he 
had  entered  of  notice  to  an  endorser,  Haig  v.  Newton,  1  Rep.  Const.  Court, 
423-4  ;  of  a  town  clerk,  who  had  forgotten  his  entries  of  charges  for  penal- 
ties. Corporation  of  Columbia  v.  Harrison,  2  id.  213;  of  a  notary,  entering 
a  notice  which  he  had  forgotten,  Bullard  v.  Wilson,  5  Mart.  Lou.  Rep.  N. 
S.  196,  with  many  others  to  the  same  effect.  *  *  The  result  is  that 
original  entries,  attested  by  the  man  who  makes  them,  may  be  read  to  the 
jury,  though  he  remember  nothing  of  the  facts  which  they  record." 

But  with  deference  to  these  learned  writers,  it  is  believed  that  the  Ame- 
rican cases  have  not  gone  to  that  extent,  and  that  an  examination  of  the 
cases  cited  by  Cowen,  J.,  and  of  others,  will  show  that  no  entries  have 
ever  been  admitted  as  evidence,  attested  by  the  person  who  made  them, 
except  entries,  contemporaneous  with  the  fact  and  made  in  the  usual  and 
regular  course  of  business  ;  other  entries  may  be  used  to  refresh  the 
memory,  according  to  the  distinction  above-mentioned,  but  are  not  them- 
selves admissible  in  evidence.     The  true  test,  as  estabUshed  in  this  country, 


288  smith's   leading   cases. 

of  the  admissibility  of  an  entry  verified  by  the  oath  of  the  person  who  made 
it,  appears  to  be  this  :  entries,  such  as  would  have  been  admissible,  after 
the  death  of  the  maker  of  them,  on  proof  of  his  handwriting,  are  compe- 
tent evidence  in  his  lifetime  when  authenticated  by  his  oath  ;  and  no  other 
entries  are.  It  is  but  an  extension  of  the  principle  on  which  the  entries  of 
a  deceased  person  are  admitted  ;   and  it  is  a  reasonable  and  safe  extension. 

The  general  rule  is  that  hearsay,  (meaning  entries,  as  well  as  declara- 
tions, of  a  third  person)  is  no  evidence  :  the  cases  of  Doe  v.  Turford,  &c., 
ascertain  that  original  entries  in. the  course  of  business,  &c.,  are  not  hear- 
say, but  are  evidence  ;  they  partake  of  the  nature  of  legal  eridence:  for,  if 
such  entries  were  mere  hearsay,  and  did  not  possess  the  nature  of  evidence, 
the  death  of  the  person  who  made  them  could  not  render  them  evidence. 
Seeing  then  that  such  entries  are  evidence,  the  only  reason  why  they  are 
not  admissible,  during  the  life  of  the  person,  is,  that  they  are  secondary 
evidence :  but  if  the  person  is  called,  and  his  memory  is  a  blank  on  the 
subject,  it  would  seem  that  the  way  is  paved  for  the  admission  of  secondary 
evidence,  as  much  as  if  the  person  were  dead ;  and  he  may  then  authenti- 
cate his  entries.  But  a  private  memorandum  is  mere  hearsay:  it  could 
not  be  admitted  as  evidence  after  the  death  of  the  person  who  made  it, 
although  it  should  be  authenticated  as  an  entrj'-  made  by  the  deceased, 
according  to  his  belief  of  the  truth,  and  for  the  purpose  of  preserving  a 
recollection  of  the  facts  as  th^y  were,  &c. :  and  if  it  be  inadmissible  and 
not  evidence,  after  his  death,  when  authenticated  by  others,  it  cannot 
become  evidence,  by  being  authenticated  by  himself:  the  mode  of  verifying 
it,  cannot  affect  its  nature  and  legal  operation. 

An  examination  of  the  cases  will  show,  1,  that  the  original  entries,  made 
in  the  regular  course  of  business,  are  admissible,  when  authenticated  by  the 
person  who  made  them ;  and,  2,  that  no  other  kind  of  entries  are. 

1.  That  entries  such  as  would  be  admissible  after  the  death  of  the  per- 
son, upon  proof  of  his  handwriting,  may  be  received  during  his  lifetime,  if 
authenticated  by  his  oath,  appears  to  be  recognised  in  the  following  cases. 
In  the  Farmers  and  Mechanics  Bank  v.  Boraef,  1  Rawle,  152,  the  bank, 
for  the  purpose  of  showing  the  amount  of  a  deposit  made  by  Boraef,  offered 
in  evidence  an  entry  of  this  deposit,  made  at  the  time  in  the  book  of  the 
bank,  supported  by  the  oath  of  the  clerk  who  received  the  deposit,  and  made 
the  entry  ;  the  court  belew  rejected  the  book,  but  admitted  the  witness  ;  the 
witness,  however,  knowing  nothing  but  from  the  entry,  could  not,  without 
it,  undertake  to  swear  at  all ;  the  Supreme  Court  decided  that  the  book 
might  go,  with  the  clerk's  testimony,  to  the  jury,  "as  containing  one  of  the 
entries  made  by  him  at  the  time,  with  his  explanations,  if  he  had  any  to 
offer."  "  It  is  assumed,"  say  the  court,  "  that  the  clerk  was  able  to  swear 
that  his  entry  in  the  book  was  true,  to  the  best  of  his  knowledge  and  belief; 
otherwise,  most  clearly,  the  book  is  not  evidence  for  any  purpose."  Now 
it  is  very  evident,  from  the  case  of  Union  Bank  v.  Knapp,  3  Pickering,  96, 
that  this  bank-book  Avould  have  been  evidence  in  such  a  case,  and  for  such 
a  purpose,  after  the  death  of  the  clerk,  upon  proof  of  his  handwriting.  The 
case  therefore  appears  to  go  upon  the  principle  above-mentioned ;  certainly 
it  does  not  go  beyond  it.  See  Henry  v.  Oves,  4  Watts,  46. — Bullard  v. 
Wilson,  5  Martin  N.  S.  196,  (3  Condensed  Louis.  505,)  seems  to  be  much 
the  same  in  principle  ;  to  prove  notice,  the  court  held  that  "  the  parish 


PRICE  V.  THE  EARL  OF  TORRINOTON.  289 

judge's  memorandums  of  his  havinfr  given  the  protest  to  the  defendant  in 
person,  was  on  the  back  of  the  protest,  and  he  deposed  he  had  no  recollec- 
tion of  giving  it,  but  he  had  no  doubt  of  his  having  given  it,  as  he  never 
made  such  a  memorandum  without  having  the  notice."  Here  the  entry, 
made  according  to  the  course  of  the  witnesses's  business,  was  the  evidence; 
and  it  would  have  been  competent  after  his  death.  It  appears  to  be  an 
nuthority  for  receiving  such  entries  :  at  all  events,  it  is  not  authority  for 
admitting  any  other  kind  of  entries.  In  New  York,  the  admissibihty  of 
such  entries  is  settled  ;  and  notwithstanding  that  the  distinction  between 
private  entries,  and  such  as  are  made  in  the  course  of  business,  was  con- 
fused or  doubted  in  Merrill  v.  Ithaca,  &c.,  it  is  expressly  recognised  in  the 
recent  case  of  Bank  of  Monroe  v.  Culver,  2  Hill's  N.  Y.  532.  This  was 
an  action  of  assumpsit  on  a  note ;  the  defence  was  usury,  to  rebut  which, 
the  plaintiffs  offered  the  cashier  to  prove  how  the  note  came  to  the  bank, 
and  was  paid ;  the  offer  was  to  prove  this  "  from  memoranda  and  entries  in 
the  handwriting  of  the  witness,  made  at  the  time  the  transaction  to  which 
they  refer,  occurred,  and  while  he  was  cashier,  and  had  charge  of  the  books 
and  correspondence  of  the  bank;  which  memoranda  and  entries  the  witness 
would  swear  he  believed  were  truly  and  correctly  made  ;  although,  inde- 
pendent of  such  memoranda  and  entries,  the  witness  had  no  recollection  of 
the  facts,  and  even  after  having  his  memory  refreshed  by  their  examination, 
he  could  not  testify  to  the  facts,  independent  of  the  entries  and  memoranda." 
The  Supreme  Court,  per  Bronson,  J.,  after  observing  that  the  entries  and 
memoranda  were  made  in  the  usual  course  of  business,  and  were  verified  in 
the  most  ample  manner  by  the  witness  who  made,  and  whose  duty  it  was 
to  make  them,  said,  "  The  question  is,  whether  memoranda  and  entries,  thus 
verified,  should  be  allowed  to  speak  for  themselves.  I  think  they  should. 
**  Lawrence  v.  Barker,  (see  infra,)  does  not  lay  down  a  different  rule. 
The  memorandum  in  that  case  was  not  made  in  the  usual  course  of  busi- 
ness, but  only  for  the  convenience  of  the  witness.  But  here,  the  memoranda 
and  entries  were  made  in  the  usual  course  of  business,  and  as  a  part  of  the 
proper  employment  of  the  witness.  I  do  not  see  how  it  is  possible  to  doubt 
that  such  evidence  ought  to  be  received."  In  Sickles  v.  Mather,  20  Wen- 
dell, 72,  there  is  a  dictum  which  carries  the  rule  to  this  extent,  and  not  fur- 
ther: "A  clerk  can  connect  the  books  with  the  sales,  (many  of  which  he 
usually  makes  himself,)  and  his  original  entries,  (to  the  general  accuracy  of 
which  he  can  make  oath,)  become  themselves  evidence  of  what  he  may  in 
fact  have  forgotten."  And,  indeed,  from  the  language  in  the  two  last  cases, 
it  seems  rather  that  Merrill  v.  Ithaca,  &c.,  is  understood  as  really  not 
going  farther. 

2.  The  cases  which  decide  that  a  private  memorandum,  made  for  the 
purpose  of  preserving  a  knowledge  of  the  fact,  is  not  admissible,  though 
authenticated  by  the  person  who  made  it,  are  decisive.  In  Lawrence  v. 
Barker,  5  Wendell,  301,  a  witness  was  called  to  prove  a  conversation.  He 
stated  "that  he  was  present  at  such  conversation,  and  produced  a  memo- 
randum in  his  own  handwritinsf,  made  at  the  time,  and  which  he  said  he 
had  no  doubt  contained  a  true  account  of  what  took  place ;  but  that  he  had 
no  recollection  of  the  facts,  independent  of  the  paper.  The  judge  refused 
to  allow  the  paper  to  be  read,  or  the  witness  to  state  its  contents  ;  but  told 
him  he  might  read  it  to  refresh  his  recollection.     The  witness  said  he  had 

Vol.  I.— 19 


290  smith's   leading   cases. 

read  it,  but  could  only  recollect  that  the  parties  were  together  in  his  pre- 
sence, conversing  on  the  subject ;  that  he  had  no  doubt  that  he  put  down 
precisely  what  was  said  ;  that  he  made  the  memorandum  at  the  moment, 
but  had  no  recollection  of  the  facts,  independent  of  the  paper.     The  judge 
would  not  allow  the  witness  to  state  the  contents  of  the  paper,  or  the  paper 
to  be  read  in  evidence  to  the  jury."     The  Supreme  Court,  per  Savage, 
C.  J.,  said,  "The  rule  is  that  a  written  memorandum  may  be  referred  to  by 
a  witness  to  refresh  his  memor}^  but  he  must  swear  to  the  truth  of  the  facts, 
or  his  statement  is  not  evidence.     It  is  not  sufficient  for  him  to  swear  that 
he   made   a    memorandum   which    he    believes  to   be    true,    and    that    he 
relies   upon  it,  without  any  present  recollection  of  the  facts.     This  is  the 
extent  to  which  the  witness   could  go.     The  judge,  therefore,  properly 
refused  to  receive  his   statement  as  evidence.**  In  case  of  goods  sold  and 
delivered,  a  merchant's  books  are  evidence  to  a  certain  extent,  but  that 
is  very  different  from  a  memorandum    made  by  a  witness  for   his   own 
convenience,  not  sanctioned  by  the  parties,  and  where  no  necessity  exists, 
requiring   the    admission   of    such    a   paper,   as    is   frequently   the    case 
in  respects  to  merchants'   books."     In  Calvert,  &c.  v.  Fitzgerald,  &c., 
Littell's   Selected   Cases,    (Kentucky)    388,   the   same    point  is   decided. 
The  witness  being  asked  if  one  Stewart  had  not  rented  the  place  under  an 
adverse  patentee,  "  answered,"  (says  Mills,  J.,  delivering  the  opinion  of 
the  court,)  "  he  could  not  tell.  A  paper  signed  by  himself  was  then  handed 
to  him,  to  refresh  his  recollection.     The  paper  was   dated  about  the  period 
in  question,  and  purported  to  be  a  statement  then  made  and  signed  by  the 
witness,  detailing  transactions  relative  to  the  renting  or  lease  aforesaid.  The 
witness,  after  examining  the  paper,  stated,  that  it  was  his  handwriting,  and- 
that  he  wrote  it,  and  he  had  no   doubt  it  contained  the  truth  :  but,  upon 
reflection,  he  had  no  recollection  of  the  transactions  stated  in  the  paper, 
other  than  what  the  paper  contained,  and  that  he  could  not  speak  of  them, 
independent  of  the  paper.     The  court  rejected  the   paper,  and  would  not 
let  it  go  in  evidence  ;  and  this  is  the  first  question  presented  in  this  court.  It 
cannot  be  pretended,  that  such  a  memorandum,  written  by  a  stranger,  at  the 
date  of  any  transaction,  would  itself  be  evidence  of  the  facts  it  contained. 
It  is  well  settled,  that  a  witness  may  use  such  a  memorandum  to  refresh  his 
recollection  ;  but  he  must  speak  from  his  recollection,  and  not  the  memo- 
randums.    As  this  witness  could  not  do  that,  the  memorandum  itself  was 
properly  rejected.     It  could  not  be  for  the   use  of  the  jury  ;  the  witness 
alone  could  use  it ;  and  as  it  did  not  aid  his  recollection,  it  was  proper  for 
no  other  purpose."  It  is,  perhaps,  a  little  too  strongly  expressed,  that,  after 
looking  at  the  paper,  the  witness  must  speak  from  recollection,  and  not  the 
memorandum  ;  but  the. law  seems  to  be  very  accurately  stated  in  the  last 
sentence,  that  the  paper  is  for  the  use  of  the  witness,  and  not  of  the  jury  ; 
it  is  to  aid  the  witness,  and  not  to  go  in  evidence.     Glover  et  al.  v.  Hunne- 
will,  6  Pickering,  222,  appears  to  be  decided  on  the  same   ground  ;  there 
had  been  a  bill  of  sale,  and  then  an  attachment  against  the  propert}^  as  the 
vendor's  ;  after  the  attachment,  the  witness  and  another  proceeded  to  iden- 
tify the  property  which  passed  by  the  bill,  and  made  a  schedule,  which  was 
offered  in  evidence,  with  his  oath ;  it  is  true  the   schedule  was  made  after 
bill  of  sale  and  the  attachment,  but  it  was  contemporary  with  the  ideniifica- 
lion,  which  was  what  was  to  be  proved,  and  as  the  oath  of  the  witness  as 


PRICE     V.     THE     EARL     OF     TORRINGTON.  291 

to  the  occurrences  at  that  time  seems  to  have  been  thought  admissible,  and 
to  have  been  so,  that  would  appear  not  to  have  been  the  reason  for  rejecting 
it ;  the  court,  per  Parker,  C.  J.,  said,  "the  witness  called  was  not  able  to 
identify  the  property,  except  by  a  schedule  taken  after  the  attachment,  and 
even  with  that  he  was  unable  to  swear  with  any  certainty  as  to  its  identity. 
We  think  his  testimony  was  rightly  rejected."  See  also  Petriken  v.  Baldy, 
7  Walts  &  Sergeant,  429. 

The  other  cases  which  are  cited  as  authority  for  the  admission  of  entries 
made  not  in  the  regular  course  of  business,  are  all  cases  of  refreshing 
memory.  The  South  Carolina  cases,  some  of  which  are  cited  in  Merrill  v. 
Ithaca,  &c.,  are  all  of  this  kind  :  their  purport  is  not  to  make  entries  admis- 
sible, but  simply  to  carry  the  practice  of  refreshing  memory,  beyond  the 
case  where  the  witness  actually  remembers,  to  the  case  where  he  will 
undertake  to  swear  positively,  from  the  paper,  though  without  recollection. 
In  short,  the  object  of  those  cases  is  to  establish  the  second  kind  of  refresh- 
ing memory,  above-stated  ;  and  nothing  more.  In  Haig  v,  Newton,  1  Rep. 
Const.  Ct.  423,  to  prove  notice,  a  notary's  clerk  was  called,  who  produced 
the  minute-book  kept  by  himself  and  the  notary,  and  was  confident  he  had 
left  the  notice  with  defendant,  or  at  his  house  :  he  had  no  distinct  recollec- 
tion of  this  transaction  without  reference  to  bis  memorandum-book  :  the 
court  held  this  evidence  clearly  admissible.  This  was  unquestionably  a 
case  of  refreshing  memory;  it  is  ivithin  the  limit  fixed  by  JMaughan  v, 
Hubbard  &  Robinson  :  the  oath  of  the  witness  is  positive  ;  and  that  was 
admitted,  not  the  entries.  But  had  the  entries  been  admitted,  they  were 
entries  in  the  course  of  business.  In  Sharpe  v.  Bergley,  1  do.  373,  to  prove 
notice,  was  offered  the  clerk  of  the  notary  who  protested  the  note,  the  notary 
being  now  deceased  :  the  clerk  "  produced  the  book  in  which  the  proceed- 
ings of  the  notary  were  recorded,  and  swore  that  from  the  proceedings  in 
that  book,  and  the  habits  of  the  notary's  office  in  setting  down  the  initials  of 
the  names  of  the  clerks  by  whom  notices  were  served,  he  was  certain  he 
must  have  served  the  defendant  with  notice,  or  left  it  at  his  place  of  resi- 
dence, but  he  had  not  at  first  any  recollection  in  his  mind  of  the  circum- 
stance ;  but  after  looking  attentively,  he  said  he  could  undertake  to  swear 
that  he  had  served  the  notice  :"  the  court  appear  to  have  held  the  admis- 
sibility of  the  evidence  too  clear  for  argument :  it  was,  in  fact,  a  most 
ordinary  case  of  refreshing  memory:  and  in  Pearson  and  others  v.  AVight- 
man,  1  do.  330,  the  court  which  made  these  decisions,  spoke  of  them  both 
as  proceeding  on  this  principle; — "We  decided  in.  these  cases,"  is  the 
dictum  there,  "  that  the  testimony  of  a  witness  who  swore  positively  from 
written  memoranda,  though  they  did  not  recall  to  his  memory  a  recollection 
of  the  facts,  was  admissible  ;  and  we  were  further  of  opinion  that  such  tes- 
timony was  better  evidence  than  an  adventurous  and  unaided  recollection." 
In  the  Corporation  of  Columbia  v.  Harrison,  2  do.  213,  to  prove  the 
amount  of  dues  owing  by  the  defendant,  the  town-clerk  was  produced; 
in  relation  to  one  set  of  charges,  he  swore  that  "  he  made  the  entry  in  hi? 
ledger,  where  he  kept  the  accounts  of  the  town,  according  to  an  estimate 
made  between  the  defendant  and  himself.  That  with  regard"  to  another 
charge,  on  another  account,  "  he  usually  kept  memorandums  of  it,  and  at 
the  end  of  the  year,  after  comparing  his  accounts  with  the  defendant's  he 
carried  the  amount  as  adjusted  in  this  book.     That  he  had  had  frequent 


292  SMITHS     LEADING     CASES. 

settlements,  and  compared  accounts  with  him,  and  that  the  balance  appear- 
ing due  was  just."     The  court  said,  "  'J'he  witness  was  properly  permitted 
to  recur  to  his  ledger,  or  any  other  memoranda,  to  assist  his  memory  ;  or, 
rather  as  the  evidence  of  a  fact  which  he  knew  to  exist,  by  referring  to  it, 
although  he  might  have  lost  all  recollection  of  the  fact  itself.     The  books 
themselves  in  this  case  were  not  evidence.  The  witness  might  have  proved 
the  amount  from   recollection  :  but  the   memorandum  was  better."     The 
court   expressly  decide  that  the  books  were   not  evidence  :   nothing  was 
received  but  the  clerk's  oath  :  and  his  oath  is  not  grounded  on  the  entries, 
but  is  an  original,  independent  recollection  and  assertion,  that  the  balance 
was  just,  and  that  the   defendant  had  admitted  it.      The  Slate  v.  Rawls,  2 
Nott  &  MCord,  3.31,  was  an  indictment  for  gambhng  :  a  witness  was  called, 
who  "  began  by  stating  the  circumstances  os  they  appeared,  by  a  certain 
affidavit  drawn  up  by  himself,  at  the  time,  and  which  he  held  in  his  hand. 
He  was  asked  by  the  defendant's  counsel,  whether  he  had  a  distinct  recol- 
lection then  of  the  facts  contained  in  that  paper,  or  whether  he  could  only 
swear  to  them  because  he  saw  them  there  stated  ?     He  said,  that  some  of 
them  he  recollected,  but  that  of  others  he  had  no  recollection  ;  but  that  he 
knew  he  had  put  down  at  the  time  what  he  saw,  and  nothing  more,  and  he 
was  therefore  abh  to  swear,  that  all  those  facts  actually  existed  at  the  time, 
although  he  had  not  now  a  distinct  recollection  of  them."     Objection  being 
made,  the  court  ruled  that  the  evidence  was  admissible.     "  The  witness 
then  proceeded  to  swear,  that  he  saw,"  &c. — "  He  said  he  recollected," 
so-and-so. — "  He  did  not  now  recollect  distinctly,  that  this  defendant  was 
playing,  though  he  was   under  the   impression  that  he  was  ;  but  that  he 
could  not  swear  to  it  now,  except  from  seeing  it  stated  in  his  affidavit,  and 
he  knew  that  he  did  not  put  any  thing  down  which  he  did  not  sec."     No 
other  evidence  was  offered.     A  majority  of  the  court  above  held  the  evi- 
dence rightly  admitted  :  two  judges  dissented  ;  why,  it  is  not  stated.    This 
case  comes  clearly  within  the  meaning  of  refreshing  memory.     To  some  of 
the  facts  the  witness  swears  from  recollection  and  impression  ;  to  every 
fact,  after  looking  at  his  paper,  he  swears  positively  and  absolutely  :  and 
the  affidavit  was  not  given  in  evidence  at  all.     Such  is  the  view  taken 
of  this  case  in  the  recent  one  of  Cleverly  v.  M-Cullough,  2  Hill,  44.5,  w^hich 
was  assumpsit  for  work  and  labour.     The  witness  "  had  himself  measured 
and  superintended  the  measurement  of  a  quantity  of  the  work  done,  and 
made  entries  thereof  in  a  memorandum  book,  which  was  produced,  and  by 
reference  to  which,  he  could  testify  as  to  the  quantity  of  work,  but  he  was 
unable  to  speak  of  the  details  from  memory,  independently  of  the  book.   *   * 
The  court  permitted  the  witness  to  testify  as  to  the  quantity  from  the  entries 
in  his  book."     The  court  above,  per  Harper,  J.,  said,  "  We  think  that  the 
rule  has  been  misconceived,  which  allows  a  witness  to  look  at  a  memoran- 
dum for  the  purpose  of  refreshing  his  memory.     The  subject  is  fully  con- 
sidered in  %he  case  of  State  v.  Rawls.    The  rule  there  established  is,  that  if 
a  memorandum  were  made  by  the  witness  at  the  time,  with  a  view  to  per- 
petuate the  recollection  of  the  ft\cts,  and  the  witness  can  swear  positively  that 
the  memorandum  was  made  according  to  the  truth  of  the  facts,  and  conse- 
quently, that  the  facts  did  exist,  this  is  sufficient,  though  they  may  not  remain 
in  his  memory  at  the  time  he  gives  his  testimony.    *    *    Here,  from  the 
memorandum,  the  witness  did  swear  positively  to  the  truth  of  the  facts  in 


PRICE     V.     THE     EARL     OF     TORRINGTON.  293 

the  memorandum."  These  decisions  are  very  valuable,  as  carrying  the 
practice  of  refreshing  memory  nearly,  if  not  quite,  to  the  same  extent  to 
which  it  is  carried  in  England  :  the  principle  which  they  establish,  that 
where  the  witness  has  made  a  memorandum  at  the  time,  for  the  purpose  of 
preserving  a  recollection  of  the  fads,  and  afterwards,  upon  looking  at  the 
paper,  swears  positively  to  the  truth  of  the  facts,  though  he  can  recollect 
nothing,  his  testimony  is  admissible. 

With  regard  to  the  cases  cited,  of  the  admission  of  notes  of  counsel, 
Rogers  v.  Burton  and  others.  Peck,  108,  was  a  case  of  refreshing  memory  : 
the  judge  swore  positively  to  the  accuracy  of  the  notes  :  the  point  decided 
there  was,  that  if  after  looking  at  a  memorandum,  the  witness  can  recollect 
the  facts,  the  paper  need  not  be  produced  ;  but  if  he  cannot  recollect,  the 
original  must  be  produced.  In  Clark  v.  Vorce,  15  Wendell,  193,  the  notes 
were  used  only  to  refresh  memory,  the  witness  swearing  to  their  accuracy : 
the  point  whether  the  witness's  statement  from  the  notes,  or  the  notes  them- 
selves should  be  admitted,  was  not  before  the  court. 

The  opinion  of  Parker,  C.  J.,  in  the  recent  case  of  Haven  v.  Wendell, 
11  New  Hampshire,  112,  is  undoubtedly  in  favour  of  the  admissibility  of 
memoranda  in  certain  circumstances,  but  the  case  has  no  application  to 
private  entries  or  memoranda,  made  by  a  witness  for  the  purpose  of  pre- 
serving a  recollection  of  facts,  and  so  far  as  tlic  remarks  of  the  Chief  Jus- 
tice may  embrace  such  entries,  they  are  extra-judicial.  In  that  case,  a 
witness  testified  that  he  had  had  a  conversation  with  one  of  the  defendants, 
of  which  at  the  trial  he  recollected  only  the  principal  fact;  and  that  he,  the 
witness,  supposing  the  facts  then  slated  might  be  useful  to  the  plaintifT, 
went  inunediatcly  into  the  bank,  on  the  pavement  in  front  of  which,  the 
conversation  had  taken  place,  and  made  a  memorandum  of  them,  in  writing, 
which  he  gave  to  the  plaintifT,  who  was  the  cashier  of  the  bank.  A  paper 
being  shown  to  him  on  the  trial,  he  said  that  was  the  memorandum,  but  he 
could  not  from  reading  it  undertake  to  say  that  he  now  recollected  the  facts, 
or  knew  them,  otherwise  than  by  finding  them  in  his  handwriting  ;  but  he 
had  no  doubt  they  were  true,  and  that  he  should  have  sworn  to  them  from 
recollection  at  or  near  the  time.  This  memorandum,  with  the  testimony  of 
the  witness,  was  decided  to  be  admissible.  This  case  proves  that  a  written 
statement  of  a  fact,  made  immediately  after  its  occurrence,  and  given  to  a 
third  person  for  his  benefit,  is,  when  supported  by  the  oath  of  the  person 
who  made  it,  that  it  was  so  made  and  given,  and  that  he  believes  it  to  be 
true,  admissible  evidence.  The  writing  of  such  a  paper  at  the  time,  and 
giving  it  to  the  person  concerned  in  the  conversation,  is  so  far  a  part  of  the 
res  gesta  of  the  transaction,  that  when  accompanied  with  the  oath  of  the 
writer  that  he  has  no  doubt  it  is  true,  it  becomes  primary  evidence  ;  and  its 
admissibility  may  be  sustained  on  the  same  ground  on  which  the  attesting 
signature  of  a  witness  to  a  deed  is  legal  evidence,  when  authenticated  by 
the  witness  himself,  though  he  may  have  forgotten  the  delivery  of  the 
instrument,  or  when  his  handwriting  is  proved  after  his  death,  by  a  third 
person.  The  only  case  cited  in  Haven  v.  Wendell,  which  comes  near  the 
point  decided  there  is  Alvord  v.  Collin,  20  Pickering,  418.  431,  in  which  a 
certificate  given  by  a  witness  that  a  notice  had  been  posted  up  at  his  house, 
made  near  the  time,  was  verified  by  the  witness  at  the  trial,  as  being  in  his 
handwriting,  and  the  witness  said  he  had  no  doubt  the  certificate  stated  the 


294  smith's  leading   cases. 

truth,  though  he  had  no  recollection  of  the  fact ;  there,  the  court  referred  to 
the  case  of  the  attestation  of  a  deed,  and  said  "it  is  every  day's  practice  to 
prove  the  execution  of  deeds  and  other  instruments,  by  subscribing  wit- 
nesses, who  know  nothing  about  them,  except  that  their  names  were  Avrit- 
ten  by  themselves."  The  difference  between  a  contemporary  act,  like  the 
signature  of  an  attesting  witness,  or  the  delivery  of  the  certificate  or  memo- 
randum, as  in  the  two  cases  just  cited,  done  at  the  request,  or  for  the  bene- 
fit of  a  third  person,  and  a  private  entry  made  for  the  witness's  own  conve- 
nience, is,  in  principle,  very  wide.  The  cases  cited,  are  extensions,  and 
perhaps  excessive  extensions,  of  the  principle  on  which  the  signature  of  a 
witness  to  a  deed,  when  proved  by  himself  or  another,  is  admitted  ;  but 
they  do  not  touch  the  consideration  of  the  admissibility  of  private  memo- 
randa made  by  a  witness  for  the  purpose  of  preserving  a  recollection  of  the 
fact.  If  a  witness  has  made  such  a  memorandum  in  good  faith,  and  is  con- 
fident that  he  made  it  for  such  a  purpose,  he  ought  to  be  willing  to  swear 
positively  to  the  truth  of  the  facts  stated  in  the  memorandum.  He  is  the 
best  judge  of  the  credit  due  to  his  own  memorandum,  and  if  after  reading  it 
lie  is  not  so  confident  in  it  as  to  swear  that  he  knows  the  fact  which  he  has 
recorded,  it  ought  not  to  be  expected  that  a  jury  should  believe  it,  and  they 
onght  not  to  be  embarrassed  with  the  determination  of  another's  doubts, 
which  the  party  who  feels  them  cannot  settle. 

The  conclusion,  upon  all  the  American  cases,  as  to  the  whole  principle, 
is,  that  entries  made  in  the  regular  and  usual  course  of  business  are  admis- 
sible in  evidence  after  the  death  of  the  person  who  made  them,  on  proof  of 
his  handwriting;  and  during  his  life  if  authenticated  by  himself :  other 
private  entries  may  be  used  to  refresh  the  memory,  but  are  not  admissible 
in  evidence.  The  cases  of  Haven  v.  Wendell,  and  Alvord  v.  Collin,  place 
certificates,  or  other  written  acts,  which  happened  between  a  third  party 
and  one  of  the  parties  to  the  suit,  about  the  time  of  the  transaction  and  in 
relation  to  it,  upon  the  same  footing  with  entries  in  the  course  of  business, 
as  being  admissible  when  fully  verified  by  the  person  who  made  them,  he 
being  unable  to  give  evidence  from  direct  recollection. 

The  principle  established  in  Price  v.  Torrington,  has  been  carried  much 
farther  in  many  of  the  states  in  this  Union  ;  and  the  shop-books  of  the 
plaintiff,  kept  by  himself,  are  received  as  competent  evidence.  The  impor- 
tance of  this  subject,  and  the  variations  in  the  practice  of  the  different  states, 
render  it  necessary  to  stale  the  law  as  to  each  of  them  separately.  It  wi^l 
be  seen  that  in  some,  the  oath  of  the  part)'  is  received  in  authentication  and 
support  of  his  books;  in  others,  the  books  are  received,  when  verified  by  a 
disinterested  witness,  and  the  oath  of  the  party  is  not  received  :  in  some,  a 
limited  admission  is  given  by  statute  :  and  in  some,  we  find  no  trace  what- 
ever of  the  practice.  The  law  of  those  stales  in  which  the  books  and  oath 
of  the  party,  both,  are  received,  will  be  considered  first. 

In  MAssACHUsiiTTS,  a  plaintiff's  book  of  original  entries,  in  his  hand- 
writing, and  supported  by  his  oath,  is  evidence  of  articles  delivered,  and 
work  and  labour  done  ;  but  not  of  anything  else  ;  Prince's  administratrix 
V.  Smith,  4  Massachusetls,  455  :  of  money  charges,  however,  they  are  evi- 
dence to  the  extent  of  forty  shillings,  or  six  dollars  and  sixty-six  cents,  and 
not  beyond  ;  Union  Bank  v.  Knapp,  3  Pickering,  96.  109  ;  Burns  v.  Fay, 


PRICE     V.     THE     EARL     OF     TORRINGTON.  295 

14  id.  8  ;  of  articles  delivered,  they  are  evidence  to  any  amount;  Shillaber 
V.  Bingham,  3  Dana's  Abr.  321.  They  are  evidence  also  of  work  done  by 
the  plaintiff's  apprentice,  and  it  is  not  necessary  first  to  call  the  clerk  ;  for 
books  of  entries  verified  by  the  plaintiff's  oath  are  not  secondary  evidence; 
they  are  original  evidence,  though  feeble  and  unsatisfactory;  Mathes  v. 
Robinson,  8  Metcalf,  269.  In  Windsor  and  another  v.  Dillaway,  4  Metcalf, 
221,  it  was  decided  that  the  book  of  a  ship-broker,  containing  a  charge  of  a 
commission  of  sixty  dollars  upon  a  sale,  was  inadmissible,  because  it  was 
of  one  single  large  item,  and  related  to  a  transaction  of  which,  from  the  nature 
of  the  case,  other  and  better  evidence  could  be  given  ;  and  the  court  said 
that  this  was  "  a  questionable  species  of  evidence,  admitted  from  necessity 
only,  and  intended  for  the  aid  of  mechanics  and  small  dealers,  who  keep 
daily  accounts  of  their  transactions  ;  that  it  was  a  dangerous  species  of  evi- 
dence, and  not  to  be  extended  by  new  precedents." — The  admissibility,  or 
competency,  of  the  book,  is  for  the  court ;  the  credit  due  to  it,  is  for  the 
jury  ;  and  there  are  two  principal  objections  which  go  to  the  competency  of 
the  book.  Coxvvell  v.  Dolliver,  2  Massachusetts,  217. — As  to  the  first  of 
these,  the  rule  is  laid  down  as  follows  :  "  To  be  admitted  in  evidence,  the 
books  must  appear  to  contain  the  first  entries  or  charges  of  the  party,  made 
at  or  near  the  time  of  the  transaction  to  be  proved  ;  and  when  the  contrary 
is  discoverable  on  the  face  of  the  book,  or  comes  out  upon  the  examination 
of  the  party,  they  ought  to  be  rejected  as  incompetent  evidence  :"  per 
Sewall,  J.,  in  Coxwell  v.  T3olliver  :  "it  is  essential  to  this  kind  of  evi- 
dence, that  the  charges,  appearing  in  the  handwriting  of  the  party,  are  in 
such  a  state,  that  they  may  be  presumed  to  have  been  his  daily  minutes  of 
his  business  and  transactions,  in  which,  regard  is  had  to  the  degree  of  edu- 
cation of  the  party,  the  nature  of  his  employment,  and  to  the  manner  of  his 
charges  against  other  people.  Where  this  appearance  is  wanting,  and  the 
presumption  cannot  be  made,  the  evidence  has  usually  been  rejected  as 
incompetent  ;"  opinion  of  the  court,  per  Sewall,  J.,  in  Prince's  adminis- 
tratrix V.  Smith  :  "but  as  the  law  has  prescribed  no  mode  in  which  a  book 
shall  be  kept,  to  make  it  evidence,  the  question  of  competency  must  be 
determined  hj  the  appearance  and  character  of  the  book,  and  all  the  circum- 
stances of  the  case,  indicating  that  it  has  been  kept  honestly,  and  with  rea- 
sonable care  and  accuracy,  or  the  reverse  ;"  per  Shaw,  C.  J.,  in  Mathes  v. 
Robinson,  8  Metcalf,  269  ;  where  it  was  determined,  that  a  book  kept  in  a 
tabular  form,  with  the  days  of  the  month  at  the  head  of  the  columns,  and  the 
name  of  the  labourer  at  the  side,  and  opposite  to  it  in  each  column,  the 
fraction  of  the  day  that  he  had  worked,  was  admissible  in  evidence.  Where 
a  book  was  offered  in  evidence,  and  the  plaintiff  (a  blacksmith)  stated  "  that 
he  kept  a  slate  in  his  shop,  on  which  he  set  down  all  his  charges  as  they 
accrued,  and  that  he  was  in  the  habit  of  transcribing  the  entries  from  the 
slate  into  the  book  :  and  after  that  was  done,  to  rub  out  the  charges  on  the 
slate,  and  begin  anew  :"  the  court  admitted  the  book  ;  saying,  "  The  entries 
in  the  book  may  be  considered  original,  although  transcribed  from  a  slate  ; 
the  slate  containing  merely  memoranda,  and  not  being  intended  to  be  j^er- 
manent."  Faxon  v.  Hollis,  13  Massachusetts,  427.  In  Smith  et  al.  v. 
Sanford,  12  Pickering,  139,  the  plaintiffs  were  in  partnership  as  butchers  ; 
they  swore  that  their  custom,  during  part  of  the  year  was,  for  one  of  them 
to  carry  the  meat  round  in  a  cart  to  their  customers,  and  he  made  chalk 


296  smith's  leading  cases. 

scores  on  the  cart  at  the  time  of  delivery,  staling  to  whom  the  meat  was 
sold,  and  the  quantity  and  price  ;  "from  which  scores,  on  the  return  of  the 
cart,  on  the  same  day,  and  before  it  went  out  again,  it  was  the  custom  for 
the  other  partner  to  make  entries  in  the  book  of  original  entries  ;"  the  court 
held  the  book  competent,  and  sufficient  to  justify  the  jury  in  finding  for  the 
plaintiffs. — The  second  objection  to  the  competency  of  the  book  of  entries  is 
stated  thus  :  "  Fraudulent  appearances  or  circumstances,  such  as  material 
and  gross  alterations,  false  additions,  &c.,  are  also  objections  to  the  compe- 
tency of  the  book,  in  which  they  are  discoverable,  or  against  which  they 
may  be  proved  in  any  manner;"  Sewall,  J.,  in  Coxwell  v.  DoUiver. — 
Other  objections  than  these  two  will  only  affect  its  credit,  before  the  jury; 
such,  for  instance,  of  its  being  in  the  form  of  a  ledger,  and  not  a  day-book  ; 
which,  according  to  the  circumstances,  would  be  matter  of  observation  to  the 
jury.  lb.  Where  a  blacksmith's  book  was  in  the  ledger-form,  the  court 
held  it  no  objection  in  that  case,  for  it  was  the  way  ordinary  mechanics, 
especially  in  the  country,  kept  their  books  ;  but  if  it  had  been  a  shopkeep- 
er's book,  it  would  have  been  liable  to  more  suspicion.  Faxon  v.  Hollis. 
In  Prince's  administratrix  v.  Smith,  2  Massachusetts,  569,  it  appeared  from 
marks  in  the  day-book,  that  the  account  had  been  transferred  to  the  ledger, 
and  the  court  said,  "  When  an  account  is  transferred  to  a  ledger  from  the 
day-book,  the  ledger  should  be  produced,  that  the  other  party  may  have 
advantage  of  any  items  entered  therein  to  his  credit."  See  Hervey  et  al. 
V.  Harvey,  (Maine,  infra.)  In  Frye  v.  Barker  et  al.,  2  Pickering,  65,  it 
was  said  by  Parker,  C.  J.,  to  be  a  general  principle,  that  where  a  party'' s 
oath  is  admitted,  he  must  be  sworn  in  court;  and  that  a  p]aintiff"'s  testimony 
in  support  of  his  book  of  entries  could  not  be  taken  by  a  commission. — 
Generally,  the  original  book  should  be  brought  into  court :  but  where  the 
day-book  and  ledger  have  been  accidentally  destroyed  by  fire,  a  transcript 
proved  to  be  correct,  by  the  witness  who  transcribed  it,  is  admissible. 
Holmes  V.  Marden,  12  id.  169:  but  not  unless  it  is  a  proved  and  com- 
pared copy  of  genuine  entries.     Prince's  administratrix  v.  Smith. 

In  New  Hampshire,  in  Eastman  v.  Moulton,  3  New  Hampshire,  157,  the 
law  of  Massachusetts  as  above  stated  is  neatly  abridged,  by  Richardson,  C. 
J.,  and  adopted  as  the  law  of  that  state :  and  it  is  there  further  decided, 
that  the  admission  of  such  books,  is  to  be  confined  to  cases  where  it  may  be 
presumed  that  there  is  no  better  evidence;  and,  therefore,  if  the  charges 
are  not  in  the  handwriting  of  the  party  sworn,  or  if  it  appear  by  the  book, 
or  the  party's  testimony,  that  the'arlicle  was  delivered  by  or  to  a  third  person, 
the  book  is  to  be  rejected,  (at  whatever  stage  of  the  case  this  discovery  is 
made,)  because  there  must  be  better  evidence  attainable  :  accordingly,  in 
this  case,  when  it  appeared  that  the  articles  were  delivered  to  the  servant 
of  the  party  charged,  and  not  to  the  party  himself,  the  book  was  rejected  as 
inadmissible.  The  admissibility  of  this  evidence  is  confined,  also,  to  suits 
between  the  debtor  and  creditor  ;  for  the  necessity  upon  which  the  reception 
of  it  rests,  does  not  exist  where  the  dealing  between  the  debtor  and  creditor 
is,  as  to  the  parties  to  the  suit,  a  collateral  matter,  since,  in  such  a  case, 
either  the  debtor  or  the  creditor  is  a  competent  witness  ;  Woodes  v.  Den- 
nett, 12  Id.  511.  To  render  a  book  admissible,  the  charges  should  be  sepa* 
rate  and  special,  but  no  greater  particularity  in  describing  the  nature  of  the 
work  or  service,  than  is  usual   in  similar  cases,  is  requisite  ;  Bassett  v. 


PRICE     V.     THE     EARL     OF     TORRINGTON.  297 

SpofFord,  11  Id.  167.  Books  of  account  are  admissible  to  prove  money 
charges  to  the  extent  of  forty  shillings,  or  $6.67  ;  Id. ;  and  the  book  of  an 
intestate,  supported  by  the  oath  of  the  administrator,  is  good  evidence  ; 
Dodge  V.  Morse,  3  Id.  232.  Respecting  the  extent  to  which  the  party 
may  be  made  a  witness,  it  has  been  laid  down,  that,  "  The  party,  when 
called,  is,  in  the  first  instance,  permitted  to  state  only  that  the  book  pro- 
duced is  his  book  of  original  entries  ;  that  the  charges  are  in  his  hand- 
writing; that  they  were  made  at  the  times  they  purport  to  have  been  made, 
and  at  or  near  the  time  of  the  delivery  of  the  articles,  or  of  the  perform- 
ance of  the  services.  He  may,  however,  be  cross-examined  by  the  other 
party  ;  in  which  case,  his  answers  become  evidence,  and  he  is  entitled  to 
give  a  full  explanation  of  any  matter  in  relation  to  which  an  inquiry  is 
made  on  the  cross-examination.  It  is  reasonable  and  proper  that  he  should 
be  made  a  witness  as  far  as  the  opposite  party  chooses  to  make  him  one  ; 
and  that,  as  far  as  he  is  made  a  witness,  he  should  be  at  liberty  to  give  a 
full  explanation.  But,  in  our  opinion,  a  cross-examination  does  not  entitle 
him  to  go  beyond  this.  It  does  not  entitle  him  to  testify  as  to  independent 
facts,  not  necessary  to  the  explanation  of  the  facts,  respecting  which  he  may 
have  been  questioned  upon  the  cross-examination.  It  does  not  make  him  a 
witness  in  chief  in  the  cause  ;"  Eastman  v.  Moulton.  But  the  right  of  the 
plaintiff  to  give  full  explanations  of  the  answers  which  he  has  made  to  the 
defendant's  questions,  exists  even  when  the  book  has  been  rejected  as 
incompetent;  M'llvaine  v.  Wilkins,  12  Id.  474.  478. 

In  Maine,  as  in  Massachusetts,  books  are  competent  evidence  to  prove 
work  done,  and  goods  delivered  ;  and  cash  charges  to  the  extent  of  forty 
shillings  ($6  67) :  but  they  are  not  admissible  to  prove  that  defendant  was 
an  agent,  and  to  prove  a  deliver}^  to  him  as  agent,  and  an  agreement  by 
him  to  sell  on  account ;  Dunn  v.  Whitney,  1  Fairfield,  9  :  and  it  was  said 
in  this  case,  that  the  admission  of  books  would  be  restricted  for  the  future  ; 
that  formerly,  when  few  persons  kept  clerks,  they  were  admitted  from  neces- 
sity ;  but  that  now,  whenever  it  appeared  from  the  testimony,  or  was  to  be 
inferred  from  the  nature  of  the  transaction,  that  better  evidence  was  to  be 
had ;  as,  if  it  appeared  that  a  clerk  was  kept ;  or  if  the  articles  were  so 
large,  or  the  transaction  on  such  a  scale,  that  it  must  be  presumed  that  clerks 
and  porters  were  employed,  the  books  would  not  be  admitted.  In  the  recent 
case  of  Mitchell  v.  Belknap,  10  Shepley,  (23  Maine)  475,  however,  it  was 
decided,  that,  although  when  goods  are  delivered  by  a  servant  or  agent,  and 
the  charges  made  by  him,  the  evidence  of  that  person  will  be  required,  yet 
where  goods  are  delivered  to  a  third  person  authorized  by  such  receipt  to 
charge  the  defendant,  the  books  of  the  defendant  are  competent  evidence  of 
the  delivery,  provided  the  authority  to  charge  the  defendant  be  proved 
aliunde.  The  principle  that  books  of  entry  may  be  evidence  of  articles 
delivered,  to  a  certain  amottnt,  and  not  beyond  it,  has  been  established  in 
a  recent  case,  and  its  application  defined  with  precision.  Leighton  et  al. 
V.  Manson,  2  Shepley,  (14  Maine,)  208,  was  assumpsit  on  an  account  con- 
sisting of  only  two  charges,  for  beef,  bearing  date  the  same  day,  one  for 
355lb.,  the  other  for  8601b.  The  judge  below  rejected  the  book  of  original 
entries,  because  the  article  being  so  bulky,  the  delivery  must  be  provable 
by  other  and  better  means ;  and  the  plaintiff  was  nonsuited.  The  court 
above,  per  Shepley,  J.,  sustained  the  nonsuit,  and  expressed  the  following 


298  smith's   leading   cases. 

striking  and  satisfactory  views.  "  The  object  to  be  attained,  by  the  adnnis- 
sion  of  the  books  with  the  party's  oath,  is  to  prove  the  service  performed,  or 
ihe  articles  delivered.  The  party  must  be  able  to  state,  that  he  actually 
delivered  the  articles,  or  was  knowing  to  their  delivery,  as  well  as  that  he 
made  the  entries.  The  necessity,  then,  for  the  oath  of  the  party  in  aid  of 
his  books,  seems  to  exist  only  where  he  delivered  the  articles  himself.  If 
the  articles  were  of  such  bulk  or  weight,  that  the  person  making  the  entries 
could  not  reasonably  be  supposed  to  have  delivered  them  without  assistance, 
the  presumption  would  arise,  that  better  evidence  of  delivery  might  be  pro- 
duced ;  and  the  reason  for  admitting  his  own  testimony  would  cease.  Per- 
haps no  better  rule  for  the  guidance  of  judicial  tribunals  will  be  found,  than 
for  the  judge  to  decide  on  the  inspection  of  the  items  of  the  account,  whether 
the  items  charged  could  ordinarily  have  been  delivered  without  the  assist- 
ance of  other  persons  ;  and  admit  or  reject  the  testimony  according  as  he 
may  conclude  that  the  articles  could  or  could  not  have  been  so  delivered. 
Acting  upon  this  rule,  the  court  must  conclude,  that  it  could  not  ordinarily 
be  expected,  that  one  person  should  have  delivered  the  articles  charged  in 
the  account;  and  the  ruling  of  the  judge  must  be  regarded  as  correct :"  and 
to  the  same  effect  is  Mitchell  v.  Belknap,  482.  In  Leighton  et  al.  v.  Man- 
son,  also,  it  was  decided,  that  if  the  books  be  in  the  handwriting  of  a  deceased 
partner,  they  are  evidence  for  the  surviving  partners,  (if  otherwise  admis- 
sible,) on  proof  of  his  handwriting.  But  in  any  case,  nothing  can  be  proved 
by  such  evidence,  but  the  delivery ;  and  a  contract  as  to  price,  or  facts  not 
entering  into  the  items  of  charge,  cannot  be  proved  by  the  plaintiff's  oath  ; 
Mitchell  V.  Belknap;  Amee  v.  Wilson,  9  Shepley,  (22  Maine,)  116.  120. 
It  would  appear  that  the  word  hooh,  has  received  in  Maine,  a  signification 
rather  more  extensive,  than  has  usually  been  given*to  it  elsewhere.  In 
Kendall,  Admr.  v.  Field  et  al.,  2  Shepley,  (14  Maine,)  30,  which,  was 
assumpsit,  for  labour  in  hewing  timber,  the  report  states  that,  "The  plaintiff 
offered  in  evidence  a  shingle,  on  which  it  was  proved  that  his  intestate 
entered  from  day  to  day  in  the  woods,  an  account  of  the  timber  hewed  by 
him  each  day,  under  a  contract  with  the  defendants."  We  have  no  further 
description  of  the  shingle,  nor  account  of  what  other  evidence  Avas  offered. 
Weston,  C.  J.,  admitted  it ;  and  the  court  above,  per  Weston,  C.  J.,  said, 
"  considering  the  nature  of  his  employment,  and  the  place  where  he  was, 
and  that  the  shingle  contained  the  daily  minutes  of  the  business  in  which 
he  was  engaged,  we  think  it  was  legally  admissible  :  it  was  a  substitute  for 
a  memorandum-book,  which  answered  the  purpose  at  the  time,  and  was, 
perhaps,  as  little  liable  to  alteration  or  erasure,  without  being  detected  by 
the  eye,  as  if  made  on  paper."  It  is  proper  to  say,  in  respect  to  this  extra- 
ordinary case,  that  it  appears  from  the  argument  of  counsel,  that  everything, 
but  the  quantity  of  timber  hewed,  was  proved  by  other  evidence  ;  and  that 
it  is  stated  in  the  opinion  of  the  court,  that  after  the  entry  was  made  on  the 
shingle,  the  timber  "  was  taken  away  by  the  defendants,  without  beino- 
surveyed  ;  and  mingled  with  other  timber."  So  that  the  odium  spoliatoris, 
probably  had  something  to  do  with  the  admission  given  to  this  peculiar  kind 
of  document. — In  reference  to  the  Massachusetts  decision  of  Prince's  Ex'rx. 
V.  Smith,  it  was  held  in  Hervey  et  al.  v.  Harvey,  3  Sheplej'-,  (15  Maine,) 
357,  that  it  is  only  where  the  day-book  itself  shows,  by  marks  on  its  face, 


PRICE     V.     THE     EARL     OF     TORRINGTON.  299 

that  the  account  has  been  transferred  to  the  Jedger,  that  the  ledger  need  be 
produced,  without  notice. 

In  Pennsylvania,  books  of  original  entries  made  by  the  party,  and  veri- 
fied by  his  oath,  are  competent  evidence  of  goods  sold  and  delivered,  and 
work  done,  and  of  the  prices,  but  not  of  money  lent  or  paid  ;  Ducoign  v. 
Schreppel,  1  Yeates,  347  :  but  in  a  case  where  a  foreign  agent  and  consig- 
nee, sued  to  recover  compensation  for  articles  furnished,  and  money  ex- 
pended, and  offered  in  evidence  his  day-book,  supported  by  his  oalh,  the 
court  held,  that  as  it  related  to  a  foreign  mercantile  transaction,  necessity 
authorized  the  admission  of  the  book,  subject  to  close  scrutiny  as  to  its  fair- 
ness and  credibility  ;  Seagrove  v.  Redman  et  al.,  2  id.  254  ;  S.  C.  4  Dallas, 
153  ;  and  see  Himes  v.  Barnilz,  8  Watts,  39.  47.  The  only  proper  opera- 
tion of  books  of  entries  is,  by  showing  contemporary  charges  for  goods  deli- 
vered and  work  done,  in  a  course  of  dealing  between  the  parties,  to  serve 
as  evidence  to  raise  an  assumpsit  in  law  to  pay  for  them.  If  offered  to 
prove  any  collateral  matter;  as,  that  a  third  party  assumed  to  pay  ;  or  that 
a  certain  person  was  a  partner  in  a  house  charged  ;  or  to  prove  an  agency, 
and  show  that  goods  were  delivered  or  received  to  sell  on  commission  ;  or  to 
prove  a  delivery  of  goods  in  performance  of  a  special  contract ;  for  any  such 
purpose,  books  are  not  competent  evidence  :  Poultney  et  al.  v.  Ross,  238  ; 
Juniata  Bank  v.  Brown,  5  Sergeant  &  Rawle,  226 ;  Baisch  v.  Hofl',  1 
Yeates,  198,  and  Murphy  v.  Cress,  2  Wharton,  33  ;  Lonergan  v.  White- 
head, 10  Watts,  249,  and  Nickle  v.  Baldwin,  4  Watts  &  Sergeant,  290; 
Alexander  v.  Hoffman,  5  Id.  382  ;  Petriken  v.  Baldy,  7  Id.  429  ;  Phillips 
V.  Tapper,  2  Barr,  323  ;  arguments  of  counsel  in  Borrekins  v.  Bevan  & 
Porter,  3  Rawle,  23.  26;  but  see  Mitliin  et  al.  v.  Bingham,  1  Dallas,  272. 
276  ;  Moyes  &  Tatem  v.  Brumaux,  3  Yeates,  30.  In  sci.  fa.  sur  mechanic's 
lien,  a  book  of  entries,  is,  of  course,  competent  to  show  that  the  materials 
were  furnished  on  the  credit  of  the  house  ;  for  the  house  is  the  defendant. 
M'Mullin  V.  Gilbert,  2  Wharton,  277.  But  in  such  a  proceeding,  charges 
in  the  book  made  against  the  owner  or  contractor  individually,  are  compe- 
tent to  show  the  amount  of  materials  furnished,  and  the  facts  which  render 
the  building  liable,  may  be  proved  aliunde.  Church  v.  Davis,  9  Watts, 
304  ;  and  if  one  is  charged  in  a  book  of  entries,  and  you  prove  aliunde  that 
another  is  really  liable  as  the  principal  debtor,  the  books  are  admissible  to 
show  the  amount  and  price  of  the  articles  for  which  the  latter  is  shown  to 
be  liable.  Linn  v.  Naglee,  4  Wharton,  92  ;  Hartley  v.  Brooks,  6  id.  189. 
And  these  decisions  are  entirely  consistent  with  the  principle  above  men- 
tioned.— To  render  a  book  of  entries  admissible,  the  following  matters  appear 
to  be  necessary.  The  entries  must  be  made  in  the  course  of  the  party's 
business;  and,  therefore  the  person  making  them  should  be  in  business: 
"  it  must  be  in  a  course  of  dealing  between  the  parties,  and  the  entries  made 
about  the  time  of  the  transaction."  Walter  v.  BoUman,  8  Watts,  544  ; 
Curren  v.  Crawford,  4  Sergeant  &  Rawle,  3.  The  book  should  be  such  a 
regular  and  usual  account-book,  as  explains  itself,  and,  on  its  face,  appears 
to  create  a  liability  in  the  defendant :  therefore,  loose,  unconnected  pieces  of 
paper,  containing  other  figuring  and  scribbing  besides  the  charges  in  ques- 
tion, and  manifestly  not  <«  an  account  regularly  kept,"  was  rejected  in 
Thompson  v.  M'Kelvey  and  another,  13  id.  126;  and  a  paper,  appearing 
to  be  torn  out  of  a  book,  containing  memoranda  unintelligible  without  ex- 


300  smith's   leading   cases. 

planation  from  the  plaintiff,  was  held  inadmissible  in  Hough  v.  Doyle,  4 
Rawle,  291.     The  entries  should  be  made  loith  the  intent  to  charge:  for 
if  the  entry  be  a  charge,  this  both  asserts  a  delivery,  and  imports  a  contract ; 
Walter  v.  Bollman  :  therefore,  in  a  suit  to  recover  for  sales  made  through 
an  agent,  the  invoice-hook  of  the  agent  is  no  evidence  ;  Cooper  v.  Morrel, 
4  Yeates,  341  :  and  a  defendant's  entries  in  his  account-book,  of  work  and 
labour  done  for  him  by  the  plaintiff,  are,   on  this  account,  inadmissible  ; 
Summers  v.  M'Kim  and  another,   12  Sergeant  &  Rawle,  405  ;  Keim  v. 
Rush,  5  Watts  &   Sergeant,  377  ;  and  a   memorandum-paper,  on  which 
neither  the  defendant's  name  appears,  nor  any  charges  against  the  defen- 
dant, is  in  like  manner  incompetent ;  Hough  v.  Doyle,  4  Rawle,  291  ;  Fair- 
child  V.  Dennison,  4  Watts,  258  ;  Phillips  v.  Tapper,  2  Barr.  323:  and  a 
book  which   is  composed  of  receipts,  signed  by  the  agents  employed  to 
deliver,  cannot  be  treated  as  a  book  of  original  entries  ;   Sterrett  v.  Bull, 
1  Binney,  234;    Curren  v.  Crawford:  and  a  book  kept  by  a  forge-master 
for  the  purpose  of  enabling  him  to  settle  with  his  workmen,  where  the 
defendant's  name  appears  not  as  being  charged,  but  only  as  explanatory  of 
the  other  entries,  is  incompetent  evidence  of  sales  to  defendant ;  Rogers  and 
another  v.  Old,  5  Sergeant  &  Rawle,  404,  where  this  principle  is  established 
and  explained  by  Duncan,  J. ;  and  a  book  kept  by  a  contractor,  showing  the 
amount  of  work  done  and  by  whom,  but  which  did  not  purport  to  charge  the 
defendant,  but  seemed  to  be  an  account  against  labourers  employed   by  the 
contractor  in  the  work,  is  in  like  manner  inadmissible;  Alexander  v.  Hoff- 
man, 5  Watts  &  Sergeant,  382;  and  see  Smith  v.  Lane  and  another,  12  id. 
80,  and  Rhoads  v.  Gaul  et  al.,  4  Rawle,  404. — The  book  should  be  an 
original,  made  contemporaneously  with  the  transaction,  and  not  a  transcript 
or  digest  subsequently  made  up;  Vance  v.  Feariss,  1  Yeates,  321  ;   S.  C.  2 
Dallas,  217  ;  Rodman  et  al.  v.  Hoops's  Ex.  1  Dall.  85  ;  Fairchild  v.  Denni- 
son, 4  Watts,  258  :  but  if  entries  be  made  in  the  regular  account-book,  in 
proper  season,  from  memoranda  taken  at  the  time,  by  the  party  or  his  assis- 
tant, and  intended  to  serve  only  as  notes,  to  make  up  the  entries  more 
accurately,  the  book  is  an  original ;  Ingraham  v.  Bockius  and  another,  9 
Sergeant  and  Rawle,  285  ;  Patton  v.  Ryan,  4  Rawle,  408.      The  fact  that 
some  entries  in  the  book  are  not  original,  will  not  render  the  book  incompe- 
tent as  concerns  those  entries  which  are  proved  by  the  oath  of  the  party  to 
be  original.     Ives  v.  Niles,  5  Watts,  323  :  But  doubtless  it  would,  if  the  two 
classes  of  entries  could  not  be  distinguished:   Vance  v.  Feariss;  Kessler  v. 
M'Conachy,  1  Rawle,  435.  441.     The  book  must  be  the  day-book,  and  not 
the  ledger;  Hammill  v.  O'Donnell,  2  Miles,  101  ;  yet  if  the  book  be  properly 
authenticated  as  an  original,  it  is  not  an  objection  that  it  is  kept  in  the  led- 
ger-form ;  Thomson  v.  Hopper,  1  Watts  &  Sergeant,  467,  468  ;  Rehrer  v. 
Zeigler,  3  Id.  258  ;  Odell  v.  Culbert,  9  Id.  66.     If  from  the  magnitude  or 
nature  of  the  transaction,  it  must  be  presumed,  or  if  from  notes  and  marks 
on  the  book  it  appear,  that  the  entries  are  made  in  another  book,  that  should 
be  produced,  that  the  party  may  have  the  benefit  of  all  the  items  therein; 
dictum  per  Duncan,  J.,  in  Rogers  v.  Old. — As  to  the  time  when  the  entries 
are  to  be  made  :  as  the  purpose  of  the  entry  is  to  record  a  charge  on  the 
defendant,  the  entry  must  not  be  made  before  he  is  chargeable.     If  the 
entries  were  made  when  the  order  was  received,  before  the  delivery  was 
made,  the  book  is  incompetent ;  and  an  arbitrary  mark  affixed  to  items,  to 


PRICE     V.     THE     EARL     OF    TORRINGTON.  301 

show  that  such  were  actually  delivered,  will  not  aid,  if  it  appear  by  the 
evidence  that  that  mark  was  not  to  charge  the  defendant  but  to  inform  the 
porter  not  to  make  a  double  delivery  ;  Rhoads  v.  Gaul  et  al.,  4  Rawle,  404; 
Thompson  v.  Bullock,  2  Miles,  269,  S.  P.  ;  the  fault  here  was,  that  the 
charges  were  made,  before  the  property  in  the  goods  was  changed  ;  "the 
proper  time  for  making  the  entry,  is  at  or  about  the  time  when  there  is  a 
transmutation  of  property  from  the  vendor  to  the  vendee  ;"  Parker  v.  Don- 
aldson, 2  Walts  &  Sergeant,  9  :  and  entries  in  a  book  made  up  from  a 
memorandum,  v/hich  was  not  itself,  a  memorandum  of  sales  actually  made, 
are  inadmissible;  because  the  entries  were  not  "made  in  the  book  as  a 
registry  of  sale  and  delivery  actually  made  of  the  things  therein  mentioned, 
at  the  lime  of  their  being  so  entered  :"  Fairchild  v.  Dennison,  4  Watts, 
258;  but  in  Kaughley  v.  Brewer,  16  Sergeant  and  Rawle,  133,  entries  by 
a  tailor  employed  to  make  up  cloth  left  by  the  defendant,  which  entries  were 
made  after  the  work  was  cut  out  by  him,  and  when  it  was  delivered  to  the 
journeymen,  such  being  the  plaintiff's  manner,  (as  he  stated,)  of  keeping 
his  books,  and  such,  according  to  the  judge,  being  the  usual  practice  in 
that  and  other  professions,  were  deemed  admissible:  this  decision,  which  is 
wholly  irreconcileable  with  either  legal  principle  or  common  sense,  professes 
to  be  governed  by  the  case  of  Curren  v.  Crawford  ;  and  since  the  true  ground 
on  which  that  case  rests,  has  been  ascertained  in  Parker  v.  Donaldson,  it 
would  be  difficult  to  contrive  a  specious  argument  in  support  of  Kaughley  v. 
Brewer ;  and  we  may  safely  conclude  that  it  is  not  law ;  as  to  the  value  of 
such  a  custom,  even  had  there  been  any  evidence  of  it,  see  Sterrett  v.  Bull, 
1  Binney,  and  Forsythe  v.  Norcross,  In  Keim  v.  Rush,  5  Watts  and  Ser- 
geant, 377,  it  was  decided  that  when  goods  are  delivered  to  a  carrier  to  be 
carried  to  a  distance,  the  proper  time  to  make  the  entries,  is  when  the  car- 
rier's wagon  is  loaded  and  started  :  in  Koch  v.  Howell,  6  id.  350,  the 
plaintiff  was  a  vendor  of  paper  and  a  paper-hanger,  and  in  one  column  of 
his  book,  noted  the  whole  amount  delivered  out  to  his  workmen,  and  in  sub- 
sequent columns  the  number  of  pieces  used  and  the  prices  for  hanging 
them  ;  and  the  court  said  that  the  entries  in  the  first  column  alone  might 
have  been  insufficient  to  charge  the  defendant,  but  the  other  entries  having 
been  made  when  the  paper  had  come  to  the  defendant's  use,  and  its  quan- 
tity was  ascertained  by  hanging  it,  were  perfectly  regular  and  legal. 
The  entries  must  not  be  made  too  long  after  the  time  when  the  right  to 
charge  accrued :  the  principle  on  that  subject,  often  approved  since, 
is  thus  declared  in  Curren  v.  Crawford,  4  Sergeant  &  Rawle,  3:  "The 
law  fixes  no  precise  instant  when  the  entry  should  be  made.  At  or  near 
the  time  of  the  transaction,  they  should  be  made.  It  is  not  to  be  a  register 
of  past  transactions,  but  a  memorandum  of  transactions  as  they  occur."  In 
Jones  V.  Long,  3  Watts,  325,  this  doctrine  is  repeated  ;  and  though  later 
cases  have  appeared  to  recognize  a  stricter  and  arbitrary  limit,  a  review  of 
them  will  show,  that  the  rule  has  not  been,  and  cannot  be  established  with  any 
greater  precision.  In  Patton  v.  Ryan,  4  Rawle,  408,  where  the  plaintiff  said 
she  first  made  the  entries  on  a  card,  and  then  copied  them  into  the  book, 
"  either  the  same  evening,  or  the  next  day,  or  as  soon  after  as  I  conveni- 
nienlly  could,"  no  objection  was  made  on  the  ground  of  delay.  In  Kessler 
V.  M'Conachy,  1  id.  435,  the  party  stated  that  the  entries  were  first  made 
by  his  journeyman  on  a  slate,  and  thence  copied  by  himself,  sometimes  the 


302  smith's    leading   cases. 

same  evening,  some  of  them  in  the  week,  none  as  long  after  as  two  weeks  ; 
the  court  decided  the  book  to  be  inadmissible  :  and  though  there  is  a  dictum 
that  to  admit  entries  which  had  been  made  after  a  week  or  more  would 
cause  mistakes,  yet  the  ground  on  which  the  rejection  of  the  books  is  really 
rested  in  the  opinion  of  the  court  is,  that  the  transfer  of  the  book  was  not 
made  and  verified  by  the  same  person  who  made  the  memoranda  on  the 
slate  ;  or,  that  that  circumstance,  together  with  the  delay  in  the  transcrip- 
tion (and  there  were  several  objections  besides,)  necessarily  took  away 
confidence  in  the  book.  In  M>Coy  v.  Lighiner,  2  Watts,  347,  the  circum- 
stances as  to  this  seem  to  hav^e  been  precisely  the  same,  excepting  that  here 
the  man  who  made  the  first  entries  on  the  slate  testified,  as  well  as  the 
plaintiff,  to  the  facts ;  and  also  recollected  that  the  prices  of  the  work  done 
were  about  the  same  as  those  charged  ;  the  court  held  the  evidence  admis- 
sible upon  the  distinction  that  in  Kessler  v.  M'Conachy,  the  journeyman 
was  not  produced,  but  here  the  party's  oath  was  fortified  by  the  oath  of 
the  man  who  made  the  entries  and  did  the  work,  and  that  he  also  confirmed 
the  accuracy  of  the  prices  charged.  The  case  is  certainly  not  a  strong 
one  ;  yet  it  is  a  decision  directly  on  the  point,  that  a  week's  delay  in  trans- 
ferring entries  from  a  slate,  does  not  render  a  book  of  entries  incompetent, 
and  is  far  stronger  than  any  authority  in  Kessler  v.  M'Conachy  to  the 
contrary  on  that  point.  In  Vicary  v.  Moore,  2  id.  451,  the  book  was 
made  up  from  entries  on  loose  scraps  of  paper,  carried  in  the  pocket  one, 
two,  three,  or  four  days ;  the  court  held  the  books  so  made  up  to  be  incom- 
petent ;  and  said,  per  C4ibsox,  C.  J.,  that  if  the  entries  were  not  made  at  the 
time,  they  ought  certainly  to  be  made  in  the  regular  routine  of  business,  and 
that  here  neither  the  routine  of  the  party's  business,  nor  any  other  circum- 
stances accounted  for  the  delay.  The  principle  really  decided  in  these 
cases  appears  simply  to  be,  that  in  applying  the  two  principles  recognised 
in  Curren  v.  Crawford,  and  Ingraham  v.  Bockius,  the  court  will  be  guided 
by  the  consideration,  whether  the  first  memoranda  were  made  on  such 
material,  preserved  with  such  care,  and  transcribed  under  such  circum- 
stances, that  the  book  entries  may  reasonably  be  relied  on.  Forsythe  v. 
Norcross,  5  id.  432,  would  be  more  satisfactory,  if  we  knew  what  authority 
is  to  be  attached  to  a  per  curiam  decision,  and  if  the  circumstances  of  the 
case  were  more  fully  and  distinctly  stated  :  the  plaintiff,  a  blacksmith, 
having  sworn  to  his  book  of  entries,  said  that  he  made  the  entries  on  a  slate 
till  it  was  full,  and  then  after  four,  five,  or  six  days,  transcribed  them  into 
his  book  ;  and  he  and  three  other  witnesses,  blacksmiths,  swore  that  this 
was  a  general  custom  as  far  as  they  knew :  "  per  curiam  :  an  entry  on  a 
card  or  a  slate,  is  but  a  memorandum,  preparatory  to  permanent  evidence 
of  the  transaction,  which  must  be  perfected  at  or  near  the  time,  and 
in  the  routine  of  business.  But  the  routine  must  be  a  reasonable  one  : 
for  there  is  nothing  in  the  condition  of  a  craftsman  to  call  for  indulgence 
till  his  slate  be  full,  or  till  it  be  convenient  for  him  to  dispose  of  the  con- 
tents of  it.  *  *  The  entries  ought,  in  every  instance,  to  be  transferred  in 
the  course  of  the  succeeding  day.  *  *  On  the  principle  of  Yicary  v.  Moore, 
the  book  was,  in  the  present  instance,  incompetent."  The  dictum  in  this 
case  was  acted  on  in  Cook  v.  Ashmead  et  al.,  2  Miles,  268,  (1838,)  and 
entries  which  had  been  transferred  from  a  memorandum-book,  some  on  the 
first,  some  on  the  second,  and  others  on   the  third  day  after,  were  held 


PRICE     V.     EARL     OF     TORRINGTON.  303 

incompetent.  But  as  Forsythe  v.  Norcross,  is  expressed  to  be  ruled  by 
Vicary  v.  Moore,  it  would  seem  that  the  circumstance  of  the  first  entries 
having  been  made  on  so  uncertain  a  record  as  a  slate,  must  have  had  much 
to  do  with  influencing  that  decision ;  as  well  as  the  fact  that  the  delay  was 
very  considerable  and  very  irregular.  In  Walter  v.  Bollman,  8  Watts,  544, 
(1839,)  after  the  case  was  decided  on  other  grounds,  there  is  a  dictum,  per 
curiam,  that  "certainly,  more  than  one  day  ought  not  to  intervene,"  (the 
entries  being  made  from  memory)  "unless  there  was  something  very  pecu- 
liar in  the  nature  of  the  business."  But  in  a  later  case,  this  limitation  is 
entirely  disregarded  by  the  same  "per  curiam"  by  which  it  was  made.  In 
Hartley  v.  Brookes,  6  Wharton,  189,  (1841)  two  books  of  entries  were 
offered;  as  to  one  of  them,  the  plaintiff  testified  that  some  of  the  entries 
"  were  made  the  first,  and  some  the  second  day  after  I  had  done  the  work ;  not 
later  than  the  second  day  in  the  evening;"  and  that  some  were  taken  from  his 
head,  and  some  from  a  slate,  and  that  all  were  made  by  himself ;  the  other  book 
was  objected  to  on  another  account.  "  Per  Curiam  : — There  is  nothing 
to  distinguish  the  case  from  others  in  which  such  entries  as  these  have  been 
received.  *  *  In  Kessler  v.  M'Conachy,  no  more  was  ruled  than  thai 
the  transfer  was  too  late  at  the  expiration  of  nearly  two  weeks."  In 
Swearingen  v.  Harris,  1  Watts  &  Sergeant,  359,  in  respect  to  the  books  of 
one  deceased,  the  court  said,  the  evidence  "showed  that  it  was  the  general 
practice  of  the  intestate  to  make  his  entries  on  a  slate,  and  afterwards  draw 
them  off  in  his  books ;  and  that  this  sometimes  was  not  done  until  two  or 
three  days.  If  it  had  been  proved  that  the  same  practice  was  pursued  as 
regards  this  account,  it  would  be  doubtfid  whether  the  evidence  could  be 
received."  These  decisions  are  not  irreconcileable.  The  two  last  clearly 
show  that  the  dicta  that  the  entries  "  ought"  to  be  made  or  copied  during 
the  next  day,  are  not  to  be  taken  as  deciding  that  they  must  be  made  within 
that  time,  in  order  to  be  competent,  but  only  as  saying,  they  would  be  better 
if  made  in  that  time.  The  cases  are  reconciled  by  considering  the  rule  of 
law  to  be,  as  declared  in  Curren  v.  Crawford,  and  that  the  application  of  it 
is,  in  every  case,  to  be  determined  by  the  court  under  the  circumstances. 
In  short,  the  principle  on  this  subject  seems  to  be  stated  with  precise  and 
very  felicitous  accuracy,  by  Mr.  Justice  Sergeant,  in  Jones  v.  Long,  3 
Watts,  325  ;  "the  entry  need  not  be  made  exactly  at  the  time  of  the  occur- 
rence ;  it  suffices  if  it  be  within  a  reasonable  time,  so  that  it  may  appear  to 
have  taken  place  while  the  memory  of  the  fact  was  recent,  or  the  source 
from  which  a  knowledge  of  it  was  derived,  unimpaired.  The  law  fixes  no 
precise  instant  when  the  entry  should  be  made.  If  done  at  or  about  the 
time  it  is  sufficient."  A  principle  so  strongly  founded  in  good  sense,  and 
so  consistent  with  what  has  been  decided  in  other  states,  cannot  be  con- 
sidered as  in  any  degree  shaken  by  loose  dicta  in  later  cases  ;  especially, 
when  those  dicta  have  subsequently  been  thrown  aside  with  utter  contempt 
by  the  court  that  made  them. — In  addition  to  the  points  which  have  been 
mentioned  as  affecting  the  admissibility  of  a  book,  it  has  been  decided  that, 
"  a  book  of  entries,  manifestly  erased  and  altered  in  a  material  point,  cannot 
be  permitted  to  go  the  jury  as  a  book  of  original  entries,  and  ought  to  be 
rejected  by  the  court,  unless  the  plaintiff  gave  an  explanation  which  does 
away  with  the  presumption  which  must  exist  on  its  face."  Churchman  v. 
Smith,  6  Wharton,  146. — A  book  which  wants  any  of  the  qualities  above 


304  smith's   leading   cases. 

indicated,  is  incompetent.  It  has  been  said,  "If  the  book  appear,  on  inves- 
tigation of  the  party  by  the  court,  not  to  be  a  legal  book  of  entries,  the  court 
may  reject  it  as  incompetent.  If  this  does  not  appear  clearly,  it  is  to  be 
submitted  to  the  jury  to  decide  on;"  Curren  v.  Crawford  ;  with  instruc- 
tions, of  course,  in  the  latter  case,  to  disregard  it  entirely,  if  they  find  against 
it ;  Rodman  et  al.  v.  Hoop's  Ex'rs,  1  Dallas,  85.  But  where  the  evidence 
is  not  conflicting,  the  practice  has  long  been  for  the  court  alone  to  decide 
upon  the  subject;  See  Churchman  v.  Smith.  It  is  not  necessary  to  the 
competency  of  a  book,  that  the  party  should  be  without  a  clerk  or  porters  ; 
nor  is  it  necessary  that  the  entries  should  be  made  from  the  party's  own 
knowledge  ;  if  made  from  returns  given  by  servants,  it  is  enough  ;  Ingra- 
ham  v.  Bockius  and  another  ;  Jones  v.  Long. — The  party,  in  support  of 
his  book,  is  to  be  sworn  on  his  voir  dire,  and  can  only  be  examined,  as  to 
whether  his  book  is  a  book  of  original  entries,  and  whether  the  entries  were 
made  at  the  time  they  bear  date  :  but  being  a  party,  he  cannot  be  examined 
generally  by  the  other  side,  without  his  own  consent ;  Shaw  and  another  v. 
Levy,  17  Sergeant  and  Rawle,  99  ;  Stockton  &  Stokes  v.  Demuth,  7  Watts, 
39.  42.  The  authentication  of  the  handwriting  is  the  main  support  of 
the  evidence  ;  as  is  said  in  Rhoads  v.  Gaul  et  al.,  "  the  genuineness  of  the 
writing  must  be  proved,  in  order  to  raise  a  presumption  that  the  transaction 
was  in  the  usual  course  of  business."  Therefore,  entries  to  which  a  party 
swears  must  be  in  his  own  handwriting:  if  the  party  who  made  them  be 
dead,  or  out  of  the  slate,  the  books  are  admissible,  upon  proof  of  his  hand- 
writing ;  Van  Swearingen  v.  Harris,  1  Watts  &  Sergeant,  359  ;  Alter  v. 
Berghaus,  8  Watts,  77;  Odell  v.  Culbert,  9  Watts  &  Sergeant,  66:  if  the 
entries  were  made  by  a  clerk,  he  should  be  called ;  or  if  dead  or  out  of  the 
state,  his  hand  may  be  proved  ;  Sterritt  v.  Bull,  1  Binney,  234.  If  the 
entries  are  made  by  a  clerk  who  is  absent  at  the  time  of  the  trial,  his  character 
for  honesty  may  be  impeached  ;  and  if  made  and  sworn  to  by  the  plalntifT, 
the  evidence  may  be  discredited  by  showing  that  he  is  unworthy  of  credit 
on  his  oath,  and  that  his  books  are  notoriously  unworthy  of  confidence,  and 
to  establish  the  latter  point,  particular  acts  of  irregularity  in  keeping  them 
may  be  shown  ;  Crouse  and  another  v.  Miller,  10  Sergeant  &  Rawle,  155  ; 
Barber  v.  Bull,  7  Watts  &  Sergeant,  391.  And  see  in  confirmation  of  this, 
Losee  v.  Losee,  2  Hill's  N.  Y.  610,  and  note.  In  Haughey  v.  Strickler,  3 
Watts  &  Sergeant,  411,  it  being  shown  that  the  clerk  of  the  plaintiff  was 
dead,  the  plaintiff  appears  to  have  been  allowed  to  prove  his  handwriting, 
and  verify  the  books  ;  and  in  Seagrove  v.  Redman  et  al.,  4  Dallas,  153,  in 
case  of  a  foreign  transaction,  the  same  thing  was  allowed.  Whether,  or 
when  a  copy  of  regular  books  is  to  be  received,  is  not  settled  :  it  has  been 
held  that  the  original  books  of  merchants  abroad  cannot  be  required,  and 
that  true  abstracts,  with  the  oath  of  the  clerk,  or  proof  of  his  handwriting, 
are  admissible  ;   Bell  &,  Decker  v.  Keely,  2  Yeates,  255 ;  see  Budden  v. 

Petriken,  5  Watts,  286 A  plaintiff'  is  not  bound  to  put  his  books  in 

evidence,  nor  is  he  concluded  by  them ;  the  claim  may  be  proved  in  other 
ways;  Adams  v.  Columbia  Steamboat  Company  Co.,  3  Wharton,  75; 
Fitler  v.  Beckley,  2  Watts  &  Sergeant,  458. 

In  South  Carolina,  the  early  Statutes  recognise  the  admissibility  of  the 
books  of  merchants,  shopkeepers,  and  others,  the  party  swearing  to  them  ; 
and  this,  on  the  ground  of  convenience  and  necessity.     See  1  Brevard's 


PRICE     V.     THE     EARL    OF     TORRINGTON.  305 

Digest,  315,  tit.  74.     It  has  been  decided  that,  notwithstanding  the  statute 
of  James  I.,  books  are  evidence  beyond  the  year;  and  the  evidence  is  • 
applicable  not  only  to  goods  sold,  but  to  work  done  and  articles  furnished  : 
Lamb  v.  Hart's  Adm'rs,  1  Brevard,  105.     For  example  ;  the  books  of  a 
carpenter,  Slade  v.  Teasdale,  2  Baj',  172  ;  of  a  bricklayer,.Lynch  v.  Petrie, 
1  Nott  &  M-Cord,  130 ;  or  other  mechanic,  Land  v.  Hart's  Ad'mrs,  2  Bay, 
362,  1  Brevard,  105,  S.  C.  ;  of  a  ferryman,  to  establish  charges  for  ferriage, 
Frazier  v.  Drayton,  2  Nott  &  M'Cord,  471  ;  of  a  physician,  for  services 
and  medicine,  M'Bride  v.  Watts,  1  M'Cord,  384 ;  Lance  v,  M'Kenzie,  2 
Bailey,  449  ;  of  .a  miller  to  show  the  quantity  of  lumber  delivered   from 
the  mill,  Gordon  v.  Arnold,  1  JVI'Cord,  517  ;  of  a  printer,  to  show  charges 
for  advertising,  and  for  delivering  a  newspaper,  Thomas  v.  Dyott,  1  Nott 
&.  M'Cord,  186;  though,  in  a   later  case,  it  was   held   that  the   printer's 
books  might  be  evidence  of  the  authority  to  advertise,  but  that  to  prove  that 
the  advertisements  were  actually  made,  the  file  of  papers  should  be  pro- 
duced,, as  being  better  evidence ;  Richards  v.  Howard,  2   id.  474 ;  and, 
apparently,  the^books  of  a  seine-maker.  Story  v.  Perrin,  2  Mills's  Con.  R. 
220 ;  have  all  been  held  admissible  evidence.     But  the  courts  will  not  go 
beyond  the   necessity  on  which  the  practice  is    founded,  Everingham  v. 
Langton,  2  M'Cord,  157  :  they  hold  that  this  species  of  evidence  ought  not 
to  be  allowed  where  it  is  in  the  power  of  the  party  to  produce  other 
evidence  ;  Thomas  v.  Dyott,  1  Nott  &  M'Cord,  186  ;  and  it  is  proper  only 
"  where  the  party  himself  is  the  best  or  only  witness  the  nature  of  the  case 
admits  of;"  Lamb  v.  Hart's  Adm'rs,  1   Brevard,  105.      Accordingly,  a 
schoolmaster's  books,  though  regularly  kept,  are  not  evidence  to  prove  his 
account,  because,  as  he  must  have  m.any  witnesses  at  command,  the  evidence 
of  his  books  cannot  be  necessary  ;  Pelzer  v.  Cranston,  2  M'Cord,  328  ;  a 
jailor's  books  are  not  evidence  to  prove  the  length  of  time  a  person  has  been 
in  confinement,  because  they  are  "  not  the  best  evidence'  the  nature  of  the 
case  admits,"  Walker  v.  M'Mahan,  3   Brevard,  251  ;  a  scrivener's  books 
are  not  admissible,  especially  if  offered  to  prove  what  commissions  were  to 
be  allowed  on  moneys  received,  Watson  v.  Bigelow,  2  id.  127;  and  by  a 
majority  of  the  court,  the  books  of  account  of  a  farmer  or  planter  are  not 
admissible  in  evidence  to  prove  the  delivery  and  sale  of  articles,  Jeter  v. 
Martin,  id,  156;  2  Bay,  173,  S.  C.     In  Thayer  v.  Dean,  2  Hill,  677, 
(1835,)  it  was  again  said  that  the  rule  rests  in  necessity,  and  is  not  to 
be  extended;  and  in  this  case,  the  memorandum-books  of  a  pedlar  were 
rejected.     Such  persons,  it  was  said,  usually  do  not  deal  on  credit,  and 
cannot  conveniently  keep  books.     They  do  not  fall  within  that  class  of 
persons,  (said  Johnson,  J.,  with  whom  the  other  judges  concurred,)  in  whose 
pursuit  or  emploj'^ment,  convenience  or  the'  usage  of  the  country,  imposes 
the  necessity  of  keeping  books  of  account.     They  do  not,  therefore,  fall 
within  the  principle  of  the  rule  ;  and  believing  that  it  has  already  been 
extended  too  far,  I  am  not  disposed  to  superadd  this  item  to  the   long  list 
of  suspicious  evidence."      The   books  of  a  billiard-table-keeper  are  not 
evidence,  partly  because  the  charge  is  neither  for  work  done  nor  goods 
delivered,  and  partly  as  being  against  good  morals  ;  Boyd  v.  Ladson,  4 
M'Cord,  76,  where  a  strong   disposition  is   shown   to  restrict  this  sort  of 
evidence  ;  but  when  the  latter  objection  was  made  in  case  of  the  charges 
Vol.  I.— 20 


306  smith'sleadingcases. 

for  spirituous  liquors  in  small  quantities,  it  was  not  considered  sufficient ; 
Herlock  v.  Riser,  1  id.  481. — As  to  the  purposes  for  which  books  of  entries 
are  competent,  the  principle  is,  that  they  are  evidence  to  prove  the  delivery 
of  the  article,  or  work  done,  and  nothing  more  :  and  the  recent  case  of  St. 
Philip's  Church  v.  White,  2  McMullan,  306.  312,  limits  the  rule  very 
strictly,  and  determines  that  even  in  the  case  of  a  mechanic,  they  are 
admissible  only  where  the  work  is  done  in  the  plaintiff's  shop,  and  delivered 
out ;  and  not  where  the  work  is  done  on  the  defendant's  premises,  as  ia 
building  or  repairing  a  house  or  other  fixture,  as  there  can  be  no  necessity 
for  such  evidence  in  a  case  of  that  kind,  the  work  being  apparent  and 
palpable,  and  the  only  question  being  by  whom  and  for  whom  it  was  done  ; 
neither  of  which  are  proper  to  be  proved  by  this  evidence.  In  an  action 
to  recover  compensation  for  the  labour  of  a  slave,  memoranda  in  defendant's 
books,  though  customary,  are  not  evidence  to  show  on  wliat  days  the  slave 
did  not  work  ;  M'Kewen  v.  Barksdale,  2  Nott  &  M'Cord,  171.  Books  are 
not  evidence  to  prove  or  contradict  a  sjoeciaZ  contract ;  Pritchard  v.  M'Owen, 

1  id.  131,  note;  and  with  this  agrees  Deas  v.  Darby.  In  that  case  the 
plaintiff,  a  tailor,  had  charged  the  defendant  with  clothes,  (not  appearing  to 
be  necessaries,)  made  for  and  delivered,  by  his  direction,  to  his  ward  ;  and 
there  was  no  other  evidence  than  the  plaintiff's  entries  and  oath.  The 
-court,  after  argument,  decided  the  evidence  to  be  incompetent.  "  The 
liability  of  a  defendant  to  pay  an  open  account  of  a  merchant  or  shop- 
keeper," says  the  court  in  that  case,  does  not  arise  merely  on  account  of 
the  charge  against  him,  but  in  consequence  of  the  delivery  of  the  goods  to 
him,  or  to  his  servant  or  agent,  for  his  use ;  or,  in  other  words,  it  is  in 
respect  of  the  consideration  which  he  has  received  ;  so  that  book-entries 
prove  no  more  than  the  delivery  of  the  article  charged.  Now,  if  from  these 
it  appears  that  the  articles  were  delivered  to  another,  and  for  another's  use, 
the  liability  ceases,  unless  he  i&  liable  on  some  other  special  contract ;  and 
if  a  merchant  were  allowed  to  make  every  contract  the  subject  of  a  book- 
entry,  and  himself  to  prove  it,  the  community  would,  indeed,  be  at  their 
mercy  ;"  Deas  v.  Darby,  id.  436 ;  confirmed  in  Brown  v.  Kinlock,  et  al., 

2  Spears,  284;  Kinlock,  Phillips  &  Co.  v.  Brown,  1  Richardson,  223. 
This  principle  received  a  singular  application  in  Venning  v.  Hacker  & 
Sniezer,  2  Hill,  584.;  the  book  there,  was,  in  part,  made  up  from  memoranda 
made  by  the  defendants ;  and  these  entries,  as  consisting  of  declarations  or 
admissions  of  the  defendants,  the  plaintiff,  on  the  authority  of  Deas  v. 
Darby,  was  held  incompetent  to  prove;  in  the  same  case  it  was  said  the 
plaintiff's  books  could  prove  a  delivery  only  by  himself;  and  if  the  entries 
were  made  up  from  the  representations  of  a  slave,  the)''  were  inadmissible. 
In  M'Bride  v.  Watts,  1  M'Cord,  384,  a  physician,  in  a  suit  against  a  captain, 
for  attendance  on  the  sailors,  was  allowed  to  prove,  by  his  books,  both  the 
service  rendered,  and  that  it  was  at  the  instance  of  the  defendant ;  but  pro- 
bably the  true  ground  of  that  decision  was,  that  when  the  service  was 
proved,  the  law  imposed  on  the  captain  the  liabilit}'-  of  paying  for  it — A 
book  to  be  admissible,  should  be  regularly  kept :  and  if  the  entries  appear 
to  have  been  made  out  of  the  usual  course  of  business,  and  not  in  the  regular 
■order  in  which  the  transactions  occurred,  the  books  are  to  be  rejected  ; 
Lynch  v.  M'Hu^o,  1  Bay,  33 .;  Thayer  v.  Dean,  2  Hill,  677.  The  charges 
must  be  specific  and  particular;  and  a  general  charge  of  work  done,  or 


PRICE     V.     THE    EARL    OF     TORRINGTON.  307 

services  rendered,  at  such  a  time,  is  inadmissible  ;  Lynch  v.  Petrie,  1  Nott 
&,  M'Cord,  130  ;  Lance  v.  M'Kenzie,  2  Bailey,  449.  The  books  offered 
in  evidence,  must  be  produced  in  court ;  for,  the  defendant  has  a  right  to 
inspect  them  in  court,  and  attack  their  credit  for  any  want  of  regularity  or 
fairness  apparent  on  the  books  themselves  ;  Furman  &  Smith  v.  Pray,  2 
id.  394.  If  some  of  the  entries  have  been  made  in  a  way  to  render  them 
incompetent,  and  there  is  no  means  of  distinguishing  these  from  the  others 
the  whole  book  is  to  be  rejected  ;  Venning  v.  Hacker  &  Sniezer,  2  Hill, 
584.  The  entries  should  be  proved  by  the  oath  of  the  party  who  made 
them :  but  if  one  of  two  partners,  plaintiffs,  has  made  the  entries,  and  has 
moved  out  of  the  state,  the  other  partner  may  prove  his  handwriting ; 
Foster  v.  Sinkler,  1  Bay,  40 :  and  under  circumstances  which  excused  the 
necessity,  third  persons  were  permitted  to  authenticate  a  physician's  books, 
he  having  moved  out  of  the  state  ;  Spence  v.  Sanders,  id.  119. 

The  law  of  Connecticut  differs  from  the  law  in  these  states,  only  in  the 
extent  to  which  the  party's  oath  is  allowed ;  a  deflection  occasioned 
apparently  by  statute  ;  in  other  respects,  the  decisions  are  well  suited  to 
illustrate  the  true  character  of  this  evidence.  For  the  recovery  of  book-* 
charges,  the  action  of  book-debt  is  given  by  statute  ;  1  Swift's  Digest,  727  ; 
and  the  evidence  of  the  parties  recognized  as  admissible :  but  the  deci- 
sions has  placed  a  limit  to  the  evidence  which  the  parties  may  give.  They 
may  testify  as  to  the  quantity,  quality,  and  delivery  of  the  articles  :  Phenix 
V.  Pringle,  Kerby,  207  ;  and  to  everything  tending' fo  the  support  or  con,' 
futation  of  the  account,  as  having  ever  created  a  legal  liability  ;  accord- 
ingly, a  plaintiff" may  testify  to  the  acknowledgment  of  a  debt  made  by  the 
defendant,  or  to  facts  from  which  it  may  be  inferred  ;  Johnson  v.  Gunn,  2 
Koot,  130  :  Bryan  v.  Jackson,  4  Connecticut,  289  Bradley  v.  Basset,  13id. 
560  ;  but  Tf  issue  be  joined  on  some  collateral  matter,  as,  tender,  release, 
accord  and  satisfaction,  or  the  statute  of  limitations,  the  evidence  of  the 
parties  is  not  admissable ;  Weed  et  al.  v.  Bishop,  7  id.  128;  Terrill  v. 
Beecher,  9  id.  344;  nor  to  prove  any  special  agreement  or  promise;  John- 
son v.  Gunn. — This  action  and  the  evidence  of  book-entries,  are  permitted 
only,  where  the  right  to  charge  exists  at  the  time  of  the  delivery,  and 
arises  in  consequence  of  the  delivery ;  Bradley  v.  Goodyear,  1  Day,  104 ;  and 
therefore,  where  money  had  been  sent  to  be  applied  in  payment  of  plain- 
tiff''s  note,  and  was  not  so  applied,  it  was  not  allowed  to  be  recovered  in  this 
action  or  by  this  species  of  evidence,  because  the  delivery  of  the  money 
gave  no  right  to  charge  it,  but  the  right  to  recover  arose  from  subsequent 
events  ;  ibid.  On  the  same  principles,  where  the  right  of  action  arises  from 
special  agreement,  and  the  delivery  is  in  pursuance  of  it,  the  books  are  not 
admissible;  Terrill  v.  Beecher,  9  Connecticut,  344  ;  Green  v.  Piatt,  11  id. 
205;  Kirby,  158.  289 :  it  is  said  by  Daggett,  J.,  in  Terrill  v.  Beecher, 
that  this  action  will  not  lie,  except  for  such  a  delivery  as  the  oaths  of  the 
party  may  prove  ;  which  principle,  on  the  authority  of  Johnson  v.  Gunn, 
throws  it  out  in  all  cases  of  special  agreement  and  promises.  Charges  made 
against  a  son,  may  in  this  action,  be  recovered  against  the  father,  where  he 
is  legally  bound  to  pay  for  them  ;  Bryan  v,  Jackson  :  this  action  and  evi- 
dence are  not  appropriate  in  case  of  properly  loaned  and  not  returned,  or 
to  recover  for  torts,  or  to  a  claim  by  use  and  occupation  ;  Beech  v.  Mills,  5 


308  smith's  leading  cases. 

Connecticut,  493.  In  case  of  death,  charges  in  one's  books,  for  goods,  ser- 
vices, and  money,  are  legal  evidence  to  sustain  book-debt.  Dwight  v. 
Brown,  9  id.  84. 

In  Delaware,  by  statute,  25  Geo.  2,  (Hall's  Revised  Laws,  1829,  p.  89, 
tit..  Contracts,)  in  actions  for  articles  sold  and  delivered,  and  other  matters 
properly  chargeable  in  an  account,  the  oath  of  the  plaintiff,  together  with  a 
book  regularly  and  fairly  kept,  are  declared  to  be,  in  all  cases,  evidence  to 
charge  the  defendant.  It  is  considered  as  settled,  that  cash  is  not  a  matter 
prpperly  chargeable  in  account.  Smith  &  Brown  v.  INI'Beath,  C.  P.  Kent, 
1814,  cited  1  Harrington,  346  :  lottery  tickets  are,  Bailey  v.  M'Dowel,  ib., 
but  Robinson,  J.  dissented,  considering  them  to  be  like  cash.  The  sub- 
scription to  a  paper  is  not  properly  proved  by  an  entry  in  a  book-account ; 
but  if  the  subscription  be  established  by  other  proof,  the  annual  subscription- 
price,  it  is  said,  might  form  a  proper  subject  for  a  book-entry  ;  Ward  v. 
Powell,  3  Id.  379.  381.  If  the  plaintiff  reside  in  the  state,  the  original 
book  must  be  produced,  and  supported  by  the  oath  of  the  party:  if  he 
reside  out  of  the  state,  the  practice  is  to  admit,  by  consent,  sworn  copies  of 
the  entries,  and  the  consent  of  the  defendant  will  be  presumed,  it  seems, 
unless  he  give  timely  notice  to  the  counsel  of  the  other  party  that  the  pro- 
duction of  the  original  books  will  be  required  ;  but  if  such  notice  be  given, 
the  original  books  must  be  produced,  or  else  the  sale  and  delivery  of  the 
articles  must  be  proved  by  common  law  evidence  ;  Craig  and  Sergeant  v. 
Russel,  2  Id.  353  ;  Fitzgibbon's  Adm'r  v.  Kinney,  3  Id.  317.  In  Rowland 
V.  Burton,  2  id.  288,  a  notched  stick,  with  the  party's  oath  that  the  notches 
xysTe  made  at  the  time  that  the  work  Avas  done,  was  admitted  as  a  good 
book  of  entries.  In  this  way  the  plaintiff,  a  negro,  proved  an  account  run- 
ning through  two  or  three  years,  consisting  of  a  number  of  items,  amount- 
ing in  all  to  $25,40,  and  recovered  :  "he  was  fully  examined  on  his  book, 
and  the  accuracy  of  his  entries  tested  by  an  account  made  out  from  it  some 
time  before." 

There  are  other  states  in  which  the  book  is  admitted  in  certain  cases,  but 
not  the  oath  of  the  party.  These  are  New  York,  Illinois,  New  Jersey, 
Georgia,  and  perhaps  Ohio. 

■  In  New  York  the  oath  of  the  party  is  not  received  :  but  the  book 
itself  under  certain  restrictions,  is;  and  this,  whether  the  party  is  a 
merchant,  or  engaged  in  other  business.  Sickles  v.  Mather,  20  Wendell, 
72.  In  Case  v.  Potter,  8  Johnson,  211,  the  point  of  admissabiliiy  was  not 
decided  ;  but  it  was  said  per  curiam,  that  though  from  the  usage  which  had 
crept  in,  a  shop-book  might  be  admitted  in  case  of  a  sale  and  delivery, 
yet  "  it  can  never  apply  to  a  charge  for  cash  lent,  but  only  to  the  regular 
entries  of  the  party,  in  the  usual  course  of  his  business."  In  Vosburgh  v. 
Tliayer,  12  id.  461,  which  was  an  action  for  butcher's  meat  furnished  to 
the  defendant  and  his  family,  it  was  proved  by  several  witnesses  that  the 
plaintiff  had  been  in  the  daily  practice  of  supplying  them  with  meat  during 
the  period  for  which  he  claimed  payment;  it  was  proved  by  some  of  those 
who  had  dealt  with  him,  that  he  kept  just  and  honest  accounts  ;  and  it 
appeared  that  he  had  no  clerk  ;  the  question  was  as  to  the  admissibility  of 
his  books  of  account.  The  court  held  it  too  late  to  question  the  competency" 
of  such  evidence.  They  said,  (per  Curiam)  that  such  books  "  are  not  evi- 
dence  of  money  lent ;  because    such  transactions    are  not,   in   the  usual 


PRICE    V.    THE    EARL     OF     TORRINGTON.  309 

course  of  business,  matter  of  book  account.  They  are  not  evidence  in  the 
case  of  a  single  charge,  because  there  exists  in  such  case,  no  regular  deal- 
ing between  the  parties.  They  ought  not  to  be  admitted  where  there  are 
several  charges,  unless  a  foundation  is  first  laid  for  their  admission,  by  prov- 
ing that  the  party  had  no  clerk  ;  that  some  of  the  articles  charged  have  been 
delivered  ;  that  the  books  produced  are  the  account-books  of  the  party,  and 
that  he  keeps  fair  and  honest  accounts ;  and  this  by  those  who  have  dealt 
and  settled  with  him.  Under  these  restrictions,  from  the  necessity  of  the 
case,  and  the  consideration  that  the  party  debited  is  shown  to  have  reposed 
confidence,  by  dealing  with  and  being  intrusted  by  the  other  party,  they  are 
evidence  for  the  consideration  of  the  jury."  Platt,  J.,  dissented,  totis 
viribus,  from  the  whole  principle  of  admissibility  ;  holding  it  novel,  danger- 
ous, and  not  to  be  justified  by  necessity.  In  M'Alister  v.Reab,  4  Wendell, 
483,  the  point  was  touched,  but  nothing  was  decided.  In  Linnel  and  Foot 
V.  Southerland,  11  id.  668,  an  action  for  articles  and  work,  the  deli- 
very of  one  article,  and  the  doing  of  one  item  of  the  work,  and  the  prices, 
were  proved  :  "  the  books  of  account  of  the  plaintifl^s  were  then  produced, 
and  it  was  proved  by  two  witnesses  who  had  dealt  and  settled  with  the 
plaintiffs,  that  they  kept  fair  and  honest  books,  and  that  during  the  time  the 
account  against  the  defendant  accrued,  they  had  no  clerk:"  the  court,  on 
error,  held  the  evidence  competent ;  whether  sufficient,  was  not  a  question 
for  them.  In  Merrill  &  al.  v.  The  Ithaca  and  Owego  R.  R,  Co.,  16  id. 
587,  a  suit  for  work  and  labour,  certain  check-rolls  kept  by  the  plaintiff' or 
his  assistants  to  show  the  number  of  days  the  men  employed  by  him  worked, 
were  held  inadmissible  as  books  of  account,  on  the  following  grounds,  deriv- 
able from  the  decisions  of  New  York  and  other  states  :  "1.  Because  the 
plaintiffs  had  clerks  and  other  witnesses  of  the  labour ;  2.  they  were  not 
the  general  books  of  daily  account  of  the  plaintiffs  ;  and  there  was  no  trust 
implied,  that  they  should  keep  these  accounts  for  the  defendants.  3.  It  is 
not  a  simple  case  of  charge  for  services  done  on  a  quantum  meruit,  known 
and  recognized  as  such  by  both  parties  at  the  time.  Charges  for  any  thino- 
done  or  delivered  under  a  supposed  special  contract,  but  which  afterwards 
becomes  matter  of  account  by  operation  of  law,  in  consequence  of  a  recission 
of  the  contract,  (the  case  in  hand)  cannot  be  proved  by  the  party's  book. 
There  must  be  a  right  to  charge,  when  the  service  is  done,  or  the  goods 
delivered."  In  Sickles  v.  Mather,  20  id.  72,  the  rule  of  Vosburgh  v.  Thayer 
is  adopted  ;  the  reason  of  requiring  proof  that  no  clerk  was  kept,  is  said  to 
be  that  the  books  are  secondary  evidence,  and  not  admissible  till  it  is  shown 
that  the  primary  and  better  evidence  of  a  clerk  cannot  be  had  ;  but  a  fore- 
man, who  only  delivers  goods,  and  notes  the  delivery  on  a  slate  from  which 
the  plaintiff"  makes  up  his  books,  ia,  not  a  clerk  within  this  rule,  and  the 
books  in  such  case  are  admissible  :  in  this  case,  moreover,  the  memoranda 
were  made  by  the  foreman  on  a  slate,  and  thence  transcribed  by  the  plain- 
tiif  into  his  book;  "the  plaintiff"  used  to  take  the  slate  home,  sometimes 
every  day,  and  sometimes  every  two  or  three  days,  as  was  found  convenient, 
for  the  purpose  of  transcribing  ;"  and  the  court,  after  reviewing  the  cases 
in  other  states,  held  this  to  be  no  objection  ;  and  they  observe,  respectino- 
these  petty  restrictions,  "The  rule  which  receives  the  party's  books,  even 
with  his  oath,  seems  to  be  regarded  as  of  questionable  policy,  if  we  are  to 
judge  of  the  language  of  the  courts  and  the  course  of  decision  in  several 


310  smith's    LEADING    CASES. 

States  where  it  prevails,  In  some,  they  aprjiear  disposed  to  load  it  with  a  mul- 
titude of  restrictions  as  to  the  kind  of  business  in  respect  to  which  the  books 
are  to  be  received,  and  the  manner  in  which  they  are  kept,  and  the  proba- 
bility that  belter  evidence  may  be  had,  &c.  The  rule  is  undoubtedly  a  depart- 
ure from  the  common  law,  and  may  be  a  dangerous  one  ;  but  that  is  rather 
an  argument  for  repudiating  it  altogether  than  attempting  to  mitigate  its 
virulence  by  feeble  palliatives." 

In  Illinois  the  New  York  rule  is  adopted,  and  it  has  been  decided,  that  in 
case  of  open  accounts,  composed  of  many  items,  where  the  entries  are  in  the 
plaintiff's  own  handwriting,  and  he  kept  no  clerk,  and  it  is  proved  by  a  wit- 
ness who  had  settled  with  the  plaintiff  on  the  book,  that  it  is  fair  and  correct, 
and  it  is  proved  also  that  part  of  the  articles  were  delivered,  the  plaintiff's 
book  of  accounts  is  admissible  ;  but  this  will  not  apply  to  an  account  for 
money  lent,  as  that  is  not  usually  the  subject  of  a  charge  in  account,  notes 
being  generally  taken  ;  nor  to  an  account  containing  a  single  charge  only, 
as  that  would  show  no  regular  dealings  between  the  parties  ;  Beyer  v. 
Sweet,  3  Scammon,  120. 

In  New  Jersey,  (where,  in  like  manner,  the  party's  oath  is  not  received, 
but  his  book  and  handwriting  must  be  proved  by  a  witness)  books  are 
evidence   of  work  done   and   articles   delivered  :  as   to  cash,  it  is   certain 
that  of  a  single  charge  they  are  not  evidence.  Carman  v.  Dunham,  6  Hal- 
sted,  189  ;  and  it  appears  to  be  admitted  that  of  two  or  three  standing  alone 
they  are  not  evidence  ;  yet  where  there  have  been  miscellaneous  dealings 
between  the  parties,  and  there  are,  among  other  charges,  entries  of  cash  lent, 
•which  appear  to  have  been  in  the  course  of  business  and  are  according  to 
custom,  the  practice  has  been,  especially  in  earlier  times,  to  admit  the  books. 
Craven  v.  Shaird,  2  Halsted,  345  ;  Wilson  v.  Wilson,  1  id.  95  ;  but  in  the 
latter  case,  Ford,  J.  was  strongly  against  the  admissibility  of  such  items  ; 
and  the  able  opinion  of  Chief  Justice  Hornblower  in  Carman  v.  Dunham, 
shows  clearly  that  the  principle  of  admitting  them  is  wrong.     The  entries 
ought  to  be  original  entries,  "made  at  the  time  the  transaction  took  place, 
or  as  nearly  at  the  time  as  is  usual,"  per  Ford,  J.  in  Wilson  v.  Wilson  ; 
and  in  Hagaman  v.  Case,  1  Southard,  370,  Kirkpatrick,  C.  J.,  said  the 
prices  ought  to  be  slated  in  the  book  :  an  account  made  up  all  at  one  time, 
without  showing  when,  whether  it  be  in  a  book  of  entries  or  out  of  it,  is 
inadmissible;  Wilson  v.  Wilson  ;  Swing  v.  Sparks,  2  Halsted,  59.  Accounts 
kept  ledger-wise  have  been  admitted,  "  if  it  appeared  to  be  the  general  mode 
in  which  the  party  keeps  his  books,  but  not  otherwise  ;  and  even  then  with 
great  caution,  and  giving  them  little  consideration  without  concurring  cir- 
cumstances to  strengthen  them,  and  give  them  weight,"  per  Kirkpatrick, 
C.  J.  in  Wilson  v.  Wilson.     In  Jones  v.  De  Kay,  Pennington,  955,  it  was 
held,  that  the  facts,  that  some  leaves  had  been  cut  out  of  the  book,  and  that 
the  account  was  kept  ledger-wise,  did  not  render  it  inadmissible,  and  that 
the  credit  due  to  it  was  for  the  determination  of  the  jury.     In  Leveringe  v. 
Dayton,  4  Washington  C.  C.  R.  698,  the  plaintiff's  ledger  was  offered  with 
a  debit,  "  To  duties  $1602 ;"  and  Judge  Rossel  cited  a  case  in  which  such 
evidence  had  been  admitted  and  the  judgment  for  that  reason   reversed  in 
the  Supreme  Court  of  New  Jersey  ;  and  upon  that  authority.  Judge  Wash- 
ington rejected  the  evidence  :  the  reason  appears  to  have  been  not  that  the 
entr}''  was  in  the  ledger,  but  because  it  was  a  large  charge  of  money  paid 
on  account,  entered  all  at  once,  without  appearing  to  be  in  the  course  of 


PRICE    V.     THE     EARL    OF     TORRINGTON.  311 

business;  the  case  alluded  to  by  Judge  Rossel  was,  probably,  Wilson  v. 
Wilson.  Entries  against  one  may  be  given  in  evidence  against  another,  if 
it  be  proved,  aliunde,  that  the  latter  ordered  the  things,  Tenbroke  and  Chap- 
man V.  Johnson,  1  Coxe,  288  :  Townly  v.  Wooly  and  another,  id.  377 ;  but 
not  unless  such  order  is  proved,  Jones  v.  Brick  and  Lane,  3  Halsted,  269. 

In  Georgia,  the  New  York  practice  is  adopted.  In  Martin  v.  Tuffe, 
Dudley,  16,  the  rule  is  declared  thus:  "  A  merchant's  and  shopkeeper's 
books  are,  by  constant  practice,  received  as  evidence  to  prove  the  sale  and 
delivery  of  goods,  when  it  is  shown  that  the  books  offered  are  of  original 
entry,  are  in  his  handwriting,  that  he  keeps  fair  books,  has  had  dealings 
with  the  person  charged,  and  that  he  kept  no  clerk."  In  this  case,  the 
entries  were  in  the  party's  handwriting,  and  he  had  kept  two  clerks,  but  both 
were  dead  ;  and  it  was  held  that  by  reason  of  their  death,  the  party's  situa- 
tion was  the  same  as  if  he  had  kept  no  clerk,  and  that  the  books  were  com- 
petent as  being  the  best  evidence  attainable.  It  was  held,  also,  in  this  case, 
that  the  entries  must  be  specific  and  particular,  and  that  a  general  entry  of 
»'  merchandize"  without  other  proof,  is  not  competent  evidence :  and  in 
Williams  v.  Abercrombie  and  Horton,  id.  252,  where  the  entry  was  one 
charge  of  31  days'  work  at  so  much  a  day,  it  was  decided  to  be  inadmissi- 
ble ;  and  the  court  said,  the  entries  should  "  appear  to  be  daily,  or  made 
when  the  work  is  done,  or  the  article  delivered.  The  credit  given  to  such 
books  seems  to  rest  upon  this  idea :  that  as  the  entry  is  made  from  day  to 
day  as  the  articles  are  made  or  delivered,  there  is  no  reason  to  suspect  that 
they  are  made  with  a  view  to  fraud  or  injustice,  especially  when  it  is  in 
proof  that  the  party  is  in  the  habit  of  keeping  fair  and  correct  books." 

In  Ohio,  the  account-book  and  oath  of  the  party  are  admitted  to  a  certain 
extent  by  statute  ;  and  beyond  the  statute,  the  New  York  practice  of  admit- 
ting the  book  without  the  oath,  in  some  cases  appears  to  be  recognized. 
The  act  of  February  19,  1810,  spc.  6,  and  of  December,  18,  1823,  sec.  2, 
in  the  same  words  enact,  "that  in  all  actions  where  any  claim  or  defence  is 
founded  on  book  accounts  of  not  more  than  eighteen  months  standing,  in 
which  is  drawn  in  question  the  validity  or  amount  of  such  book  accounts, 
the  court  or  justice  may,  upon  the  trial  of  such  action,  examine  the  party 
under  oath  or  affirmation,  touching  the  validity  of  such  account  or  accounts, 
which  shall  be  admitted  as  evidence  on  the  trial,  the  credibility  thereof 
being  left  to  the  jury  or  justice  to  determine."  Under  this  statute,  it  is  not 
necessary  that  every  item  of  the  account  should  be  within  18  months  :  if  the 
transactions  be  apparently  fair  and  the  account  continuous,  so  as  to  be  one 
open  account,  it  is  enough  if  any  of  the  items  be  within  18  months  ;  James 
V.  Richmond  and  Bostwick,  5  Hammond's  Ohio,  337  :  a  check  book  is  not 
such  a  book-account  as  the  act  contemplates,  and  cannot  be  sworn- to  ;  Wil- 
son v.  Goodin,  Wright,  219.  When  this  law  was  first  made,  the  courts 
considered  that  being  an  innovation  on  the  common  law,  it  must  be  taken 
strictly ;  and  they  held  that  a  party  could  only  testify  that  the  book  was  his 
book  of  accounts,  and  could  not  swear  to  the  truth  of  any  of  the  charges. 
But  a  wider  extent  is  now  given  to  the  oath  of  the  party,  and  the  following 
principles  are,  in  a  recent  case,  considered  as  established.  If  the  mattei-s 
charged  are  such  as  generally  constitute  the  subject  of  a  book  account,  the 
performance  of  the  services,  if  the  charge  be  for  work,  and  the  quantity, 
quality,  and   delivery  of  the  articles,  if  the  charge   be  for  goods,  may  be 


312  smith's    LEADING    CASES. 

proved  by  the  oath  of  the  party  claiming  by  virtue  of  the  book  account ; 
but  the  book  in  vphich  the  original  entries  were  made  must  be  produced, 
otherwise  the  oath  of  the  party  will  be  rejected ;  if,  for  instance,  there  be  a 
day-book  and  a  ledger,  the  day-book  as  well  as  the  ledger  must  be  before  the 
court.  But  though  the  party  may  prove  what  services  were  performed,  and 
the  quantity,  quality  and  delivery  of  articles,  since  in  many  cases  he  alone 
is  acquainted  with  these  facts,  yet  he  cannot  testify  as  to  the  price  or  value 
of  the  articles  or  services  ;  this  must  be  proved  by  disinterested  witnesses  ; 
much  less,  if  there  be  a  specific  contract,  can  he  testify  to  such  contract :  but 
though  the  party's  testimony  in  introducing  his  book  is  thus  restricted,  yet  on 
the  cross-examination,  a  wide  range  of  inquiry  is  allowed.  This  practice  is 
applicable  to  charges  for  goods  sold,  and  labour  and  other  services  performed, 
contained  in  the  account  books  of  merchants,  farmers,  mechanics  and  pro- 
fessional men.  As  to  money  charges,  a  distinction  is  taken  ;  if,  in  the 
course  of  business,  small  sums  are  passing  between  the  parties,  these  may, 
with  propriety,  be  charged  on  book,  and  proved  in  the  same  manner  as  the 
other  items  of  the  account :  yet  money  lent  or  paid,  especially  if  in  any  con- 
siderable amount,  is  ordinarily  not  the  subject  of  book  charge  ;  a  note  or 
receipt  is  usually  ta'^cen  ;  and,  therefqi;e,  though  an  individual  might  perhaps 
be  engaged  in  such  business  as  would  justify  such  charges,  yet  in  ordinary 
cases  they  are  not  admissible.  Cram  v.  Spear,  8  Flammond's  Ohio,  494  ; 
where  the  whole  subject  is  examined.  In  that  case,  an  account  containing 
7  items  of  different  things  amounting  to  nearly  900  dollars,  was  offered  : 
three  of  the  charges,  amounting  altogether  to  nearly  $700,  were  for  cash 
lent:  and  this  part  of  the  account,  and  this  alone,  it  was  proposed  to  prove 
by  the  party's  oath. — The  court  decided  that  it  could  not  have  been  the 
intention  of  the  legislature  to  admit  this  kind  of  testimony  in  such  a  case  ; 
and  the  plaintiff  was  nonsuit. — To  what  extent  account  books  are  admissi- 
ble beyond  the  license  of  the  statute,  is  not  very  clearly  defined.  In  James 
V.  Richmond  and  Bostwick,  the  court  said,  "  We  do  not  undertake  to  deter- 
mine whether  books  of  account  of  more  than  18  months'  standing,  may  or 
may  not  be  given  in  evidence  ;  or,  if  given  in  evidence,  by  what  descriptioQ 
of  testimony  they  shall  be  supported.  Such  accounts  are  admitted  in  some 
of  our  sister  states,  and  to  a  certain  extent  have  been  admitted  in  our  courts. 
There  is  not,  however,  we  believe,  any  seuled  practice  on  the  subject." 
In  Benlley's  Administrator  v.  Hollenback,  Wright,  168,  the  defendant 
offered  a  book  account  as  set-off".  The  court  said,  the  point  was  somewhat 
difficult.  "  In  many  cases,  justice  requires  that  account  books  should  be 
received  in  evidence  ;*  not  as  conclusive  evidence  of  a  claim,  but  as  con- 
ducing to  prove  it.  The  books  may  be  strengthened  or  weakened  by  other 
evidence,  such  as  proving  that  the  part}'-  kept  fair  books,  had  no  clerk,  &c. 
In  this  case  we  are  disposed  to  look  at  the  book.  12  Johnson's  Rep.  461 :" 
and  judgment  was  given  allowing  the  set-ofT.  In  Vanhorne's  Ex'or  v. 
Brady,  Wright,  452,  the  account-book  of  one  deceased  was  held  to  be  of 
itself  not  evidence  :  but,  under  the  circumstances, — it  aj^pearing  that  the 
accounts  were  kept  regularly,  that  the  parties  had  had  dealings,  and  that 
the  defendant  had  acknowledged  the  plaintiff''s  accuracy, — the  book  was 
admitted  in  evidence.  In  Cram  v.  Spear,  it  was  said  by  the  court,  that 
"books  of  deceased  persons  have  sometimes  been  permitted  to  go  to  the 
jury,  in  connexion  with  other  evidence,  and  without  further  proof  as  to  the 


PRICE     V.     THE    EARL    OF     T  0  R  R  I  N  G  T  0  N.  313 

books  themselves,  than  that  thej^  were  in  the  hand  writing  of  the  person 
making  the  charges.  But  this  has  not  been  done,  not  in  consequence  of 
the  statute,  but  from  the  necessity  of  the  case,  and  in  accordance  with  the 
principle  that  the  handwriting  of  a  clerk  in  the  habit  of  making  charges, 
may  be  proven  after  his  'decease,  or  when  he  is  without  the  jurisdiction  of 
the  court."  Upon  the  whole,  it  would  rather  appear  that  the  principle  of 
the  admissibility  of  account  books,  without  the  oath  of  the  parly,  and  beyond 
the  limits  of  the  statute,  is  recognized  in  Ohio  :  that  the  admission  is  not 
regulated  by  a  precise  rule  as  in  New  York  ;  but  it  is  referred  rather  to  the 
discretion  of  the  court,  who  decide  according  to  the  necessity  of  the  case, 
the  apparent  honesty  and  regularity  of  the  books,  and  the  concurrent  testi- 
mony in  favour  of  the  claim  from  other  quarters. 

In  Maryland,  North  Carolina,  Tennessee,  Alabama,  Vermont,  the 
oath  of  the  party  is  admitted  in  certain  cases  by  statute  ;  but  except  as 
far  as  the  statute  extends,  neither  the  plaintiff's  book  nor  his  oalh  are 
evidence. 

In  Maryland,  by  the  statute  of  1729,  ch.  20,  s.-9,  an  account  of  things 
properly  chargeable  in  account,  sworn  by  the  creditor,  before  a  justice,  to 
be  just  and  true,  and  that  no  payment,  security  or  satisfaction,  other  than  is 
credited,  has  been  received,  is  good  prima  facie  evidence  :  but  by  the  statute 
1785,  ch.  40,  s.  8,  this  is  restricted  to  accounts  not  exceeding  ten  pounds, 
current  money,  in  the  course  of  any  whole  year.  Beyond  the  operation'of 
these  statutes,  a  plai-ntiff's  entries  or  oath  are  wholly  inadmissible.  In 
Owings  &  Piet  v."  Low,  5  Gill  &  Johnson,  134,  the  plaintiff's  book  was 
ofiored  with  the  evidence  of  his  clerks.  Some  of  the  entries  were  by  the 
witness,  some  by  another  clerk,  who  was  absent,  some  by  one  of  the  plain- 
tiffs :  the  witness  swore  to  the  delivery  of  the  things  which  had  been  charged 
by  himself,  and  that  the  usage  of  the  house  was,  never  to  enter  a  charge 
till  the  article  was  delivered,  and  that  the  plaintiffs  were  fair  and  honest 
men,  and  would  not  make  false  charges:  the  evidence  as  to  the  witness's 
own  entries  was  received  ;  but  as  to  the  others  the  book  was  rejected  ;  and 
the  court  said,  that  the  New  York  usage  of  admitting  the  plaintiff's  books, 
had  no  existence  in  Maryland. 

In  North  Carolina,  (1  Rev.  Stat.  97,  ch.  15,)  and  Tennessee,  (Caruthers 
&  Nicholson's  Compilation,  p.  131,)  it  is  enacted,  that  in  debt  and  assutnpsit, 
where  the  declaration  is  general,  and  a  copy  of  the  account  is  filed  with  the 
declaration, — and  likewise  where  a  set-off  is  pleaded, — if  the  plaintiff  swears 
that  the  matter  in  dispute  is  a  book-account  ;  and  that  he  has  no  means  of 
proof  but  his  book,  and  that  his  book  is  a  true  account  of  all  his  dealings 
with  the  other,  or  of  the  last  settlement  of  accounts,  that  the  articles  were 
delivered,  and  _that  all  just  credits  had  been  given,  the  book  and  oath  are 
good  evidence  of  all  articles  delivered  within  two  years,  and  not  amounting, 
in  North  Carolina,  to  more  than  sixty  dollars,  or  in  Tennessee,  to  seventy- 
five  dollars:  similar  provision  is  m.ade  for  accounts  of  decedents,  when  the 
account  accrued  not  more  than  two  years  before  their  death,  and  suit  is 
brought  within  one  year  :  and  in  all  cases,  a  copy  of  the  account  is  evidence, 
unless  notice  is  given  to  produce  the  original. 

In  Alabama,  3,  statute  allows  the  oaths  of  the  parties  to  be  received, 
touching  claims  or  set-offs,  not  exceeding  twenty  dollars  ;  but  this  being  an 
innovation  on  the  common  law,  is  to  be  construed  as  strictly  as  possible  ; 


314  smith'sleadingcases. 

Lock  V.  Miller,  3  Stewart  &  Porter,  13;  Thompson  v.  Jones,  2  id.  46. 
Entries  of  the  plaintiff^  stating  deliver}'  of  goods,  are  not  evidence  for  him  ; 
"in  this  state  the  admissibility  of  proof  in  such  cases,  depends  on  the  com- 
mon law  rules  of  evidence  :"  Moore  v.  Andrews  and  Brothers,  5  Porter, 
107  ^  Nolley  v.  Holmes,  3  Judges,  642. 

In  Vermont  we  find  a  similai-  state  of  things.  Statute  (Rev.  St.  title 
41,  oh.  36,)  allows  the  action  of  account  to  be  brought  on  book-account ;  and 
directs  that,  after  judgment  quod  computet,  the  auditor  shall  have  power  to 
examine  all  the  parties  to  the  suit  on  oath,  in  relation  to  the  account,  or  any 
item  of  it,  and  call  for  the  original  books,  if  there  are  any  :  and  in  any  action 
before  a  justice,  where  a  book-account  is  sued  on  or  used  as  set-oft',  the 
justice  has  similar  powers  to  examine  the  parties  on  oath. — This  action  wiH 
lie,  and  a  book-account  is  proper  evidence,  whenever  general  indebitatus 
assumpsit  could  be  maintained  ;  that  is,  whenever  either  the  contract  is 
implied,  or  has  been  performed  on  the  plaintiff's  side  ;  but  if  the  suit  is  to 
recover  damages  for  non-performance  of  a  contract,  and  the  plaintiff  is 
obliged  to  sue  specially,  this  action  will  not  lie  ;  per  Coluier,  J.,  in  Way 
V.  Wakefield,  7  Vermont,  223 ;  that  in  the  former  cases,  a  book-charge  is 
proper,  and  this  action  maintainable,  see  Newton  v.  Higgins,  2  id.  366 ; 
Fry  v.  Slyfield,  3  id.  246  ;  Leach  &  Walker  v.  Shephard,  5  id.  363  ;  Paige 
V.  Riple)^  12  id.  289  ;  and  that  in  the  latter  they  are  not,  see  2  Aikens, 
386  :  Allen  v.  Thrall,  10  Vermont,  255  ;  Blanchard  v.  Bulterfield,  12  id. 
451  ;  Smith  v.  Smith,  14  id.  440  ;  but  when  goods  have  been  manufactured 
to  order,  and  the  property  in  them  has  passed  to  the  defendant,  this  action 
will  lie,  although  there  has  been  no  delivery;  Mattison  v.  Wescott,  13  id. 
258;  Paddock  &  Riddle  v.  Ames,  14  id.  515.  The  right  to  makeacharge 
on  book  must  exist  at  the  time  of  delivering  the  article  or  performing  the 
service  ;  Nasson  v.  Crocker,  11  id.  463;  and  therefore  money  paid  on  a  note, 
or  articles  delivered  in  payment  of  a  note,  cannot  afterwards  be  recovered  in 
an  action  on  book  account,  if  not  so  applied  by  the  creditor;  Slasson  v. 
Davis  et  al.,  1  Aikens,  73  ;  Peach  v.  Mills,  14  Vermont,  371.  376  ;  Stevens 
V.  Tuttle,  3  id.  519 ;  but  where  money  is  advanced,  or  goods  delivered,  in  . 
creation  of  a  debt,  so  that  a  right  to  charge  exists  at  the  time,  though  it  may 
be  the  understanding  of  the  parties  that  the  claim  is  to  be  adjusted  after- 
wards by  being  set-off  against  a  note  or  other  debt,  it  is  a  proper  subject  for 
book-account ;  Strong  v.  M'Connell,  10  id.  231  ;  Brooks  &  Co.  v.  Jewell, 
14  id.  470;  Hickok  &  Catlin  v.  Ridley,  15  id.  42;  Rogers  v.  Miller,  id. 
431.  It  has  been  decided,  also,  that  a  charge  of  accountability  against  one 
as  agent  to  sell,  is  enough  ;  and  when  he  sells,  the  action  may  be  brought  ; 
Hall  &  Chase  v.  Peck,  10  id.  474;  Starr  v.  Huntley,  12  id.  13  ;  but  for 
the  purpose  of  recovering  the  price  or  value  of  property,  this  form  of  action 
should  be  limited  to  cases  of  actual  sale,  or  to  cases  where  the  party  has 
admitted  his  liability  as  upon  a  sale  ;  Tyson  v.  Doe,  15  id.  571.  575. — 
The  right  to  examine  and  to  testify,  as  relates  to  both  parties,  is  unliniited, 
extending  to  every  material  fact  in  relation  to  the  account,  proper  to  be  con- 
sidered in  deciding  on  the  merits  of  the  claims  ;  Stevens  v.  Richards, 
Trusdell  &  Co.,  2  Aikens,  81;  Fay  et  al.  v.  Green,  id.  386;  May  & 
Wales  V.  Corlen,  4  Vermont,  12  ;  see  Mallocks  v.  Owens,  5  id.  42.  But 
the  party  must  be  examined  in  person ;  his  deposition  cannot  be  taken. 
Pike  V.  Blake,  8  id.  400.     Money  charges,  Warden  v.  Johnson,  1 1  id.  455 ; 


PRICE    V.     THE     EARL     OF    TORRING  TON.  315 

Chellis  V.  Woods,  id,  466;  Ins.  Co,  v.  Cummings,  id.  503  ;  and  even  a 
single  charge,  Kingsland  v.  Adams,  10  id,  201  ;  are  recoverable  thus  : 
also,  charges  for  freight ;  Boardrnan  v.  Keeler  &  Allen,  2  id.  65 :  and 
matter  on  which  a  suit  of  this  nature  could  be  brought,  (use  and  occu- 
pation, for  instance,)  may  be  involved  in  a  defence  to  it;  for  it  is  settled 
that  "if  a  party  charge  any  matter  upon  book,  and  present  it  before 
the  auditors,  and  claim  to  recover  for  it,  he  cannot  object  to  any  other 
matter  being  brought  into  the  account  upon  which  it  was  agreed  that 
the  charge  should  apply."  Gunnison  v.  Bancroft,  11  id.  490;  Fasselt 
V.  Vincent,  8  id.  73.  It  is  obvious  that  these  decisions  in  Vermont,  on 
the  evidence  proper  in  the  action  of  book-account,  are  wholly  inapph- 
cable  to  the  other  states ;  and  in  questions  respecting  the  admissions 
of  book  entries,  elsewhere,  these  cases  cannot  be  cited  without  great 
danger.  The  whole  practice  rests  upon  statute  :  by  that  statute,  it  is  not 
the  book  of  entries,  supported  by  the  party's  oath,  Avhich  is  evidence  ;  it  is 
the  oath  of  the  party,  aftected  as  to  its  credibility  by  the  appearance  of  his 
account-book,  or  the  fact  that  he  kept  no  books,  that  is  the  substantive  evi- 
dence received.  The  statute  gives  the  action  of  account,  and  directs  the 
oaths  of  the  parties  to  be  taken,  and  gives  authority  to  call  for  the  books  of 
account,  where  any  have  been  kept.  Accordingly,  it  is  no  objection  to  the 
admissibility  of  the  book  that  there  are  erasures  or  alterations  in  it ;  Sar- 
gent ^.  Pettibone,  1  Aikens,  355  ;  or  that  the  entries  are  not  by  particulars, 
and  made  at  the  time,  but  are  made  all  at  once,  in  large  amounts,  long  after- 
wards ;  Read  v.  Barlow,  1  id.  145  ;  Leach  &  Walker  v.  Shepard,  5  Ver- 
mont, 363  ;  Newell  v.  Executors  of  Keith,  11  id.  214  :  the  account  may  be 
made  up  from  memory  in  court;  and  indeed  it  is  not  necessary  that  there 
should  be  any  books  of  account  kept  at  all ;  if  the  charges  are  of  a  kind 
proper  for  book-charges,  and  the  examination  of  both  parties  on  oath,  shows 
the  claim  to  be  just,  the  party  shall  recover;  Bell  v.  M'Clean,  3  id.  185: 
and  as  the  oath  of  the  plaintiff  is  not  conclusive,  and  is  encountered  by  the 
oath  of  the  defendant,  it  is  deemed  that  this  practice  is  not  dangerous. 
Leach  et  al.  v.  Shepard  ;  Kingsland  v.  Adams,  10  id.  201.  This  view  of 
the  law  of  Vermont  has  been  given,  to  show  that  it  is  a  peculiar  practice, 
and  that  the  decisions  are  wholly  inapplicable  to  other  states ;  a  circum- 
stance which  in  some  cases,  has  been  overlooked.  It  is  important  to 
observe,  that  the  statute  which  gives  this  action  of  account  does  not  take 
away  the  common  law  action  of  assumpsit  for  goods  sold  and  delivered  ; 
and  it  has  been  decided  that  in  such  an  action  in  Vermont,  the  book  of 
entries  and  oath  of  the  party  is  not  admissible  in  evidence  ;  but  the  entries 
must  be  proved  as  at  common  laxv,  i.  e.  by  the  oath  of  the  clerk  or  servant 
who  made  them,  if  he  is  living,  and  by  proof  of  his  hand  if  he  is  dead. 
Brunham  v.  Adams,  5  Vermont,  313, 

In  Indiana  and  Mississippi,  it  has  been  decided  that  a  party's  books,  in 
his  own  handwriting,  are  not  competent  evidence:  the  subject  is  regulated 
by  the  common  law  principle.  Decamp  &  another  v.  Vandagrift,  4  Black- 
ford, 272 ;  West  v.  Poindexter,  Walker,  303.  H.  B.  W. 


316 


SMITHS     LEADING    CASES. 


[*143] 


PETER  V.   COMPTON. 


TRIN.— 5  W.  &  M.— KING'S  BENCH. 
[reported  skinner,  353.3 

"  An  agreement  that  is  not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof"  means,  in  tlie  Statute  of  Frauds,  an  agreement  which  appears  from  its  terms 
to  be  incapable  of  performance  within  tlie  year. 

The  question  upon  a  trial  before  Holt,  Chief  Justice,  at  Nisi  Prius,  in  an 
action  upon  the  case,  upon  an  agreement,  in  which  the  defendant  promised 
for  one  guinea  to  give  the  plaintiff  so  many  at  the  day  of  his  marriage,  was, 
if  such  agreement  ought  to  be  in  writing,-}-  for  the  marriage  did  not 
happen  within  a  year:  the  Chief  Justice  advised  with  all  the  judges, 
and  by  the  great  opinion  (for  there  was  diversity  of  opinion,  and  his 
own  was  e  contra:]:)  where  the  agreement  is  to  be  performed  upon  a  contin- 
gent, and  it  does  not  appear  within  the  agreetnent  that  is  to  be  performed 
after  the  year,  there  a  note  in  writing  is  not  necessary,  for  the  contingent 
might  happen  within  the  year  ;  but  where  it  appears  by  the  whole  tenor  of 
the  agreement  that  it  is  to  be  performed  after  the  year,  there  a  note  is 
necessary  ;  otherwise  not. 


This  case,  as  well  as  Birkmyr  v.  Dar- 
nell, turns  on  the  fourth  section  of  the 
Statute  of  Frauds.  That  section  directs, 
among  other  things  that  no  action  shall 
be  brought,  to  charge  any  person,  iipon 
any  agreement  that  is  not  to  be  per- 
formed within  the  space  of  one  year 
from,  the  making  thereof,  unless  the 
agreement  or  some  memorandum  or  note 
tliereof,  shall  be  in  writing,  signed  by 
the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him 
lawfully  authorised.  Peter  v.  Compton 
turned  upon  the  meaning  of  the  words 
printed  in  italics. 

The  opinion  of  the  majority  of  the 
judges  in  this  case  has  been  often  since 
confirmed.  Anon.,  Salk.  2S0;  Ftancarn 
V.  Foster,  Skinner,  356;  Fenton  v.  Em- 
biers,  3  Burr.  1281 ;  1  Bl.  333,  ubi,  per 


Denison,  J.,  "The  statute  of  frauds 
plainly  means  an  agreement  not  to  be 
performed  within  the  space  of  a  year, 
and  expressly  and  ^specifically  r  %i  ^ «  -i 
so  agreed :  it  does  not  extend  '-  '  -■ 
to  cases,  where  the  thing  may  be  per- 
formed within  the  year."  Accord.  Wells 
V.  Horton,  4  Bingh.  40,  where  it  was 
held,  that  a  contract  by  A.  that  his  exe- 
cutor should  pay  10,0U0Z.  need  not  be  in 
writing. 

The  words  of  the  statute  are  however 
express;  that  no  action  shall  lie  upon 
any  agreement  that  is  not  to  be  perform- 
ed v/ithin  one  year  after  the  making 
thereof,  unless  it  be  reduced  into  writ- 
ing and  signed.  Accordingly,  when 
the  defendant's  wife  hired  a  carriage 
for  five  years,  at  90  guineas  per  annum, 
which  contract  was,  by  the  custom  of 


1  According'  to  the  exigency  of  the  Statute  of  Frauds,  20  C.  2,  c.  3,  s.  4,  Vide  ante 
326.     Salk.  280. 

t  In  Smitii  V.  Wagtail,  Lord  Raymond,  317,  Lord  Holt  says,  speaking  of  this  case,  that 
the  reason  of  his  opinion  was,  "  because  the  design  of  the  statute  was  not  to  trust  the 
memory  of  witnesses  beyond  one  year. 


PETER    V.     COMPTON. 


317 


the  trade,  determinable  at  any  time  on 
payment  of  a  year's  hire  ;  the  court 
held  the  case  within  the  statute,  and 
that  the  contract  ought  to  have  been  in 
writing.  Birch  v.  Earl  of  Liverpool,  9 
B.  &  C.  392.  And  so  must  a  contract 
for  a  year's  service,  to  commence  at  a 
day  subsequent  to  the  making  of  the 
contract.  Bracegirdle  v.  Heald,  1  B. 
&  A.  722;  Snelling  v.  Lord  Hunting- 
field,  1  C.  M.  &  R.  20 ;  see  also  Boy- 
dell  V.  Drummond,  11  East,  142,  stated 
ante,  p.  136.  It  was  hinted  in  Brace- 
girdle  V.  Heald,  and  decided  in  Donel- 
lan  V.  Read,  3  B.  &  Adol.  899,  that  an 
agreement  is  not  within  the  statute,  pro- 
vided that  all  that  is  to  be  done  by 
one  of  the  parties  is  to  be  done  within  a 
year.  There,  the  defendant  was  tenant 
to  the  plaintiff,  under  a  lease  of  20 
years,  and  in  consideration  that  the 
plaintiff  would  lay  out  '^Ql.  in  altera- 
tions, the  defendant  promised  to  pay  an 
additional  5Z.  a  year  during  the  re- 
mainder of  the  term.  The  alterations 
were  completed  within  the  year,  and, 
an  action  being  brought  for  the  increas- 
ed rent,  it  was  objected,  among  other 
things,  that  the  contract  could  not  pos- 
sibly be  performed  wiihin  a  year,  and 
therefore  ought  to  have  been  in  writing. 
The  court  however  held  that  it  was  not 
within  the  statute.  "  We  think,"  said 
Littledale,  J.,  delivering  the  judgment 
of  the  court,  "that  as  the  contract  was 
entirely  executed  on  one  side  within 
the  year,  and  as  it  was  the  intention  of 
the  parties,  founded  on  a  reasonable  ex- 
pectation, that  it  should  be  so,  the  Stat- 
ute of  Frauds  does  not  extend  to  such  a 
case.  In  case  of  a  parol  sale  of  goods, 
it  often  happens  that  they  are  not  to  be 
paid  for  in  full  till  after  the  expiration 
of  a  longer  time  than  a  year :  and  surely 
the  law  would  not  sanction  a  defence  on 
that  ground,  where  the  buyer  had  had 
the  full  benefitof  the  goods  on  his  part." 
See  Hoby  v.  Roebuck,  7  Taunt.  157 ;  2 
Marsh.  433. 

It  may  be  observed  on  this  decision, 
that  the  contrary  seems  to  have  been 
taken  for  granted  in  Peter  v.  Compton, 
and  others  of  the  older  cases;  for  in- 
stance, in  Peter  v.  Compton,  there 
would  have  been  no  occasion  to  argue 
the  question,  whether  the  possibility  that 
the  plaintiff's  marriage  might  not  hap- 
pen for  a  year  brought  the  case  within 
the  statute  or  no,  if  the  payment  of  the 
guinea,  which  took  place  immediately, 
had  been  considered  sutBcient  to  exempt 


the  agreement  from  its  operation.  It 
may  be  further  observed,  that  the  deci- 
sion in  Donellan  v.  Read,  makes  the 
word  agreement  bear  two  different 
meanings  in  the  same  section  of  the 
Statute  of  Frauds  ;  the  words  of  the  4th 
section  are — "That  no  action  shall  be 
brought,  whereby  to  charge  any  execu- 
tor or  administrator,  upon  any  special 
promise,  to  answer  damages  out  of  his 
own  estate  ;  or  to  charge  the  defendant 
upon  any  special  promise,  to  answer  for 
the  debt,  defliult,  or  miscarriage  of  ano- 
ther person  ;  or  to  charge  any  person 
upon  any  agreement  made  in  considera- 
tion of  marriage:  or  upon  any  contract 
or  sale  of  any  lands,  tenements,  or.  here- 
ditaments, or  any  interest  in,  or  con- 
cerning them  ;  or  upon  any  agreement 
that  is  not  to  be  performed  within  the 
space  of  one  year  from  the  making 
thereof;  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof, 
shall  be  in  writing,  signed  by  the  party 
to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  au- 
thorised." Now,  it  is  clear,  that  the 
word  agreement,  when  lastly  used  in  the 
section,  means  what  is  to  be  done  on 
both  sides ;  and  it  has  frequently  been 
held,  upon  that  very  ground,  that  guar- 
anties are  void,  if  they  do  not  contain 
the  consideration  as  well  as  the  promise. 
Wain  V.  Warlters,  6  East,  10;  Jenkins 
V.  Reynolds.  3  B.  «&  B.  14 ;  Saunders  v. 
Wakefield,  4  B.  &  A,  595;  1  Wms. 
Saund.  211,  in  notis;  and  the  notes  to 
Birkmyr  v.  Darnell,  ante  ;  r  .-}:i  ^5  -1 
*but   a   much   more   confined    '-  -■ 

sense  appears  to  be  bestowed  upon  the 
W'Ord  agreement  when  it  is  held,  that  an 
agreement  is  capable  of  being  executed 
within  a  year,  where  one  part  only  of  it 
is  capable  of  being  so.  In  the  case  put 
by  Mr.  J.  Littledale,  of  goods  delivered 
immediately,  to  be  paid  for  after  the  ex- 
piration of  a  year,  great  hardship  cer- 
tainly would  be  inflicted  on  the  vendor, 
if  he  were  to  be  unpaid,  because  he 
could  not  show  a  written  agreement. 
But  it  may  be  worthy  of  consideration, 
whether,  even  if  he  were  to  be  prevent- 
ed from  availing  himself  of  the  special 
contract  under  which  he  sold  the  goods, 
he  might  not  still  sue  on  a  quantum  me- 
ruit. See  Teal  v.  Auty,  2  B.  &  B.  99; 
4  Moore,  542  ;  Earl  of  Falmouth  v.  Tho- 
mas, 1  C.  &  M  109;  Knowles  v.  Mit- 
chell, 13  East,  249.  In  Boydell  v. 
Drummond,  11  East,  159,  it  is  expressly 


318 


SMITH    S     LEADING     CASES. 


settled  that  part  performance  will  not 
take  an  agreement  out  of  the  statute, 
and  that  upon  prmciples  which  seem 
not  inapplicable  to  the  question  in  Don- 
ellan  v.  Read.  "I  cannot,"  said  Lord 
EUenborough,  "  say  that  a  contract  is 
performed,  when  a  great  part  of  it  re- 
mains Krt-performed  within  the  year;  in 
other  words,  that  jxirt  performance  is 
performance.  The  miscliicf  meant  to 
be  prevented  by  the  statute,  was  tlie 
leaving  to  memory  the  terms  of  a  con- 
tract tor  a  longer  time  than  a  year. 
The  persons  might  die  wlio  were  to 
prove  it,  or  they  might  lose  their  faith- 
ful recollection  of  the  terms  of  it."  (See 
Smith  V.  VVestall,  L.  Ray.  316.)  These 
observations  seem  applicable  in  full 
force  to  such  a  case  as  Donellan  v.  Read, 
The  performance  of  one  side  of  the 
agreement  within  the  year  could  not  be 
said  to  be  more  than  part  performance  of 
the  agreement ;  and  the  danger  that 
witnesses  may  die,  or  their  memories 
fail,  seem  to  be  pretty  much  the  same 
in  every  case  where  an  agreement  is  to 
be  established,  after  the  year  is  past,  by 


parol  evidence.  Indeed,  if  there  be  any 
difference  at  all  in  the  danger  of  admit- 
ting ora'l  testimony  after  the  year,  it 
seems  greater  in  a  case  where  one  side 
of  the  agreement  only  has  been  per- 
formed, than  in  such  a  case  as  Boydell 
V.  Drummond ;  since,  where  the  agree- 
ment has  been  partially  performed  on 
both  sides,  as  in  the  latter  case,  a  wit- 
ness giving  a  false  or  mistaken  account 
of  its  terms,  would  have  to  render  his 
tale  consistent  witli  what  had  been  done 
by  both  the  contractors ;  whereas,  if 
the  part-performance  had  been  on  one 
side  only,  the  witness  would  only  have 
to  make  his  tale  consistent  with  what 
had  been  done  upon  that  side.  It  is  true 
that,  in  Donellan  v.  Read,  there  was  a 
part-performance  on  both  sides;  but  so 
there  was  in  Boydell  v.  Drummond;  and 
the  reason  assigned  for  the  decision  in 
Donellan  v.  Read,  viz.,  that  the  whole  of 
one  side  of  the  agreement  was  perform- 
able  within  the  year,  would  equally  ap- 
ply in  a  case  where  there  had  been,  and 
could  be,  no  part-performance  on  the 
other  side  for  twenty  years. 


The  Statute  of  Frauds  renders  void  all  verbal  contracts  not  to  be  per- 
formed within  the  year;  that  is  to  say,  which  cannot  be  performed  within 
the  year:  which  neither  party  can  fulfil  or  bring  to  a  termination  within 
that  time:  Linscott  v.  M-Intire,  15  Maine,  201;  Hinckley  v.  Southgate, 
11  Verm.  428;  Lockwood  v.  Barnes,  3  Hill,  128  ;  Lower  v.  Winters,  7 
Cowen,  265.  Although  the  consideration  be  already  executed,  as  where  it 
is  a  liability  previously  incurred,  so  that  the  contract  only  binds  one  of  the 
parties,  the  same  rule  applies  ;  Cabot  v.  Hoskins,  3  Pickering,  83.  But 
although  a  contract,  in  its  terms,  imposes  duties  which,  according  to  the 
expectations  of  the  parties  when  it  is  made,  cannot  be  discharged  within  a 
year,  yet  if,  by  any  possibility,  it  can  be  fulfilled  within  that  period,  though 
meant  to  embrace  a  much  longer  time  in  its  operation,  it  can  no  longer  be 
considered  a  contract  not  to  be  performed  within  a  year,  and  consequently 
it  will  not  come  within  the  provisions  of  the  statute;  Kent  v.  Kent,  18 
Pickering,  569  ;  Peters  v.  Westborough,  19  id.  364  ;  Blake  v.  Cole,  22  id. 
97 ;  Roberts  v.  Rockbottom  Co.,  7  Metcalf,  46 ;  Derby  v.  Phelps,  2  New 
Hampshire,  515  ;  Russell  v.  Slade,  12  Connecticut,  455  ;  M'Lees  v.  Hale, 
10  Wendell,  426;  Plimpton  v.  Curtis,  15  id.  336.  This  doctrine  was 
carried  to  its  fullest  extent  by  the  Supreme  Court  of  New  York  in  Moore  v. 
Fox,  10  Johnson,  244,  where  the  declaration  was  on  a  promise  to  pay  the 
plaintiff  two  dollars  a  year  for  his  services  as  minister,  and  the  suit  w^as 
brought  for  services  rendered,  many  years  after  the  promise.  The  court, 
in  supporting  the  action,  said,  that  as  the  payment  under  the  promise, 
agreeably  to  the  evidence,  had  for  some  time  been  made  half-yearly,  the 


PETE  R    V.    CO  MP  TON.  '^^^ 

iurv  mi^ht  presume  the  promise  to  have  been  to  pay  every  half-year  and 
nThat^case:as  the  cessation  of  the  services,  before  the  expiration  of  ha 
Ltv  ar  wmild  have  produced  the  full  completion  of  the  contrac  within 
tl  a  ime  U  was  not  incapable  of  being  performed  within  a  year,  and  conse, 
nuently  could  not  be  considered  within  the  statute.  In  hke  manner  wheie 
r  mract  was  for  the  payment  of  a  sum  of  money,  as  soon  as  a  moj^ 
in  the  hands  of  the  promisor  should  be  discharged,  it  was  held  that  a  U  oug^ 
the  mortcra^^e  would  not  be  due  for  more  than  a  year,  yet  as  th^ie  ^^as 
noth  n^  to  prevent  the  parties  from  paying  it  off  before  that  time,.the  case 
did  not°come  within  the  section  of  the  Statute  of  Frauds,  here  consideied. 

Avtcher  v.  Zeh,  5  Hill,  200.  ,        .       ,  i    i 

In  Drummond  v.  Burrell,  13  Wendell,  307.  on  the  other  hand,  a  verbal,.^, 
contract  on  the  part  of  the  defendant  to  work  for  the  plamtitf  for  two  years, 
oTwhich  he  was  to  receive  one  hundred  dollars,  was  held  not  valid.     The 
case  was  distinguished  from  Moore  v.  Fox  on  the  obvious  principle,  that  the 
payment  here  was  to  be  made  in  gross,  and  that  the  contract  bemg  entire 
could  by  no  possibility,  according  to  its  own  terms,  have  been  completed 
wit  1  the  year.     Indeed,  the  real  ground  for  the  decision  of  the  older  case 
was  the  fact  that  there  was  nothing  in  the  agreement  declared  on,  to  prevent 
the  plaintifi-from  terminating  it  within  a  year,  by  wuhdrawing  his  services ; 
■    while  in  the  latter,  as  the  servant  was  sued  for  leaving  his  master  before  the 
two  years  expired,  the  whole  ground  of  the  declaration  was   that  the  ser- 
vices  could  not  be  withdrawn,  nor  the  contract  fulfil  ed,  in  less  than  two 
years.     The  same  point  had  been  previously  decided  in  Shute  v.  Dorr,  o 

Wendell,  204.  .        .    .  ^      .  . 

Moreover,  in  this  as  in  all  other  cases,  the  construction  of  the  contract  is 
a  question  of  intention,  and  even  where  the  terms  employed  are  such  as 
apparently  to  admit  of  its  being  brought  to  a  conclusion  within  the  year,  it 
will  be  held  to  have  remained  open  for  a  longer  period,  if  necessary,  to  give 
etfect  to  the  meaning  of  the  parties.      On  this  ground  it  was  held,  that  an 
action  could  not  be  supported  on  a  verbal  promise,  to  return  the  money  paid 
on  the  purchase  of  a  patent  right,  if  the  plaintiff  did  not  within  three  years 
realize  the  sum  of  one  thousand  dollars  out  of  the  profits.    Although  that  sum 
might  have  been  realized  in  less  than  a  year,  yet  as  the  object  was  the 
benefit  of  the  promisee,  the  understanding  of  the  parties  was  held  to  have 
been,  that  the  repayment  should  depend  on  the  state  of  his  accounts  at  the 
end  of  the  three  years,  in  order  to  secure  him  against  any  losse^  which  he 
mio-ht  sustain  before  the  expiration  of  that  period.     Lapham  v.  n\  hippie,  8 
Me°tcalf,  59.     It  may  be  observed  that  the  reasoning  here  employed,  pro- 
ceeded upon  the  supposition  that  the  parties  knew  nothmg  of  the  law  under 
which  they  were  making  their  contract,  since,  otherwise,  in  order  Jo  give 
it  validity,  although  the  liability  of  the  vendor  was  not  to  be  enforced  before 
the  end  of  the  third  year,  their  intention  would  obviously  have  been,  that 
he  should  be  discharged  from  it,  as  soon  as  the  vendee  had  succeeded 
in  makino-  the  thousand  dollars.     But  that  the  general  scope  and  bearing 
of  the  contract  ought  not  to  be  perverted  for  the  purpose  of  evading  the 
statute,  there  can  be  no  question,  and  such  is  the  general  tenor  ot  the  deci- 
sion in  the  case  of  Henning  v.  Butters,  20  Maine,  119. 

The  test,  therefore,  as  to  whether  a  contract  is,  or  is  not,  one  to  be  per- 
formed within  the  year,  would  seem  to  be  simply  this.     If  either  ot  the 


320  smith's   leading   cases. 

parties  can,  -without  violating  the  terms  or  intention  of  the  contract, 
■within  a  year  from  the  time  it  is  made,  bring  it  to  such  a  conclusion,  that 
its  obligations  shall  thereafter  cease  to  impose  any  future  liability,  then 
the  contract  cannot  be  called  one  not  to  be  performed  within  a  year,  since 
by  possibility  it  may  within  that  time  be  performed.  If,  however,  any 
possible  fulfilment  of  the  contract  by  either  party  in  less  than  a  year  be 
negatived  by  its  meaning  when  taken  as  a  whole,  it  must  be  considered  as 
■avoided  by  the  statute,  if  not  reduced  to  writing. 

Where  a  contract  is  entire  in  its  character,  and  one  part  is  avoided  by  a 
stat'.Jte,  the  remainder,  although  it  would  be  valid  in  itself,  is  also  void.  This 
principle,  after  being  recognised  and  applied  in  Crawford  v.  Morrell,  8 
Johnson,  253,  was  again  applied  in  Rock  v.  Thayer,  13  Wendell,  53,  to  a 
verbal  agreement  for  the  sale  of  the  land,  composing  a  mill-site,  and  of  the 
wood  and  timber  on  it.  It  was  determined  that  the  contract,  being  avoided 
by  the  statute  as  to  the  realty,  failed  as  to  the  personalty  also,  and  that  the 
vendee,  although  he  had  paid  the  full  consideration,  could  not  maintain  an 
action  for  the  timber.  In  the  Massachusetts  case  of  Loomis  v.  Newhall,  15 
Pickering,  166,  the  court  held,  that  a  promise  to  pay  for  the  board  of  an 
adult  son,  though  supported  by  sufficient  consideration,  being  void  under, 
the  statute  of  fraads  as  to  part,  gave  no  right  of  action  against  the  promisor 
for  the  residue. 

H. 


[^=146]  *CUMBER  V.  WANE. 

TRINITY,  5  GEO.  1. 

[reported,  1  STRANGE,  425.] 

Givino;  a  note  for  5Z.  cannot  be  pleaded  as  a  satisfaction  for  \ol. 

If  one  party  die  during-  a  Curia  advisari  vult,  judgment  may  be  entered  nunc  pro  tunc. 

Error  e  C.  B.  in  an  indebitatus  assumpsit  for  15/.  The  defendant  pleads, 
that  he  gave  the  plaintiff  a  promissory  note  for  5/.  in  satisfaction,  and  that 
the  plaintiff  received  it  in  satisfaction.  The  plaintiff  put  in  an  immaterial 
replication,  to  which  the  defendant  demurred.  And,  after  judgment  for  the 
plaintiff",  it  was  objected  on  error,  that  the  plea  was  ill,  it  appearing  that  the 
liote  for  5/.  could  not  be  a  satisfaction  for  15/.,  and  that  where  one  contract 
is  to  be  pleaded  in  satisfaction  of  another,  it  ought  to  be  a  contract  of  a  higher 
nature.  Hob.  68 ;  2  Keb.  804.  One  bond  cannot  be  pleaded  in  satisfac- 
tion of  another.  1  Mod.  225  ;  2  Keb.  851.  Even  the  actual  payment  of 
5/.  would  not  do,  because  it  is  a  less  sum.  5  Co.  117  ;  1  Leon,  10.  Much 
less  shall  a  note  payable  at  a  future  day. 

E  contra.    It  was  argued,  that  the  plaintiff's  demand  consisting  only  in 


CUMBER    V.     WANE.  321 

damages,  it  was  for  his  benefit  to  have  it  reduced  to  a  certainty,  and  to  have 
the  security  for  it  made  negotiable.  A  stated  account  may  be  pleaded  in  bar 
of  an  action  of  covenant.  4  Mod.  43;  1  Mod.  261  ;  1  Roll.  Abr.  122. 
Formerly  indeed,  executory  promises  were  not  held  a  satisfaction,  but  the 
contrary' has  been  since  adjudged.  Raym.  450  ;  Salk.  76.  And  now  it  is 
held  that  an  award  before  performance  is  a  bar  of  the  former  action.t 

Et  per  Pratt,  L.  C.  J.  (on  consideration.)  We  are  all  of  opinion  that  the 
plea  is  not  good,  and  therefore  the  judgment  must  be  affirmed.  As  the 
plaintiff' had  a  good  cause  of  *aclion,  it  can  only  be  extinguished  by  p^j^^-i 
a  satisfaction  he  agrees' to  accept ;  and  it  is  not  his  agreement  alone  L 
that  is  sufficient,  but  it  must  appear  to  the  court  to  be  a  reasonable  satisfac- 
tion ;  or  at  least  the  contrary  must  not  appear,  as  it  does  in  this  case.  If  5/. 
be  (as  is  admitted)  no  satisfaction  for  15/.,  why  is  a  simple  contract  to  pay 
5/.  a  satisfaction  for  another  simple  contract  of  three  times  the  value  ?  In 
the  case  of  a  bond,  another  has  never  been  allowed  to  be  pleaded  in  satisfac- 
tion, without  a  bettering  of  the  plaintiff"'s  case,  as  by  shortening  the  time  of 
payment.  Nay,  in  all  instances  the  bettering  his  case  is  not  sufficient,  for  a 
bond  with  sureties  is  better  than  a  single  bond,  and  yet  that  will  not  be  a 
satisfaction.  1  Brownl.  47.  71  ;  2  Roll.  Abr.  470.  The  judgment  there- 
fore must  be  affirmed. («) 

Then  it  was  alleged,  that,  since  the  time  when  the  court  took  to  advise, 
the  defendant  in  error  was  dead  ;  and  therefore  they  prayed,  that  they  might 
enter  the  judgment  nunc  pro  tunc,  as  was  done  in  the  case  of  Bailer  v. 
Delander,  Trin.  1  Geo.  in  B.  R.,  which  was  ordered  accordingly. (6) 

(t)  See  Crofts  V.  Harris,  Carth.  137.  Parslow  v.  Baily,  Salk.  76.  Freeman  v.  Bernard, 
Salk.  69.     Allen  V.  Milner,  2  Tyrwh.  113. 

(a)  Taylor  v.  Baker,  5  Mod.  136.  But  the  present  case  was  denied  to  be  law  in  Hard- 
castle  V.  Howard,  H.  26  Geo.  3.  Vide  2  Term.  Rep.  28.  See  also  Kearslake  v.  Morgan, 
5  Term.  Rep.  513. 

(b)  Craven  v.  Henly,  Barnes,  255.  Astley  v.  Reynolds,  Str.  917.  Tooker  v.  Duke  of 
Beaufort,  1  Burr.  147.  Sir  John  Trelawney  v.  Bishop  of  Winchester,  ib.  226.  S.  P.  Vide 
also  1  Leon.  287  ;  1  Sid.  462  ;  1  Vent.  58.  90.  But  Blackball  v.  Heal,  Com.  Rep.  13,  con- 
tra. 


The  main  point  in  this  case,,  viz.  that  brought.     On  the  other  hand,  the  defen- 

a  security  of  equal  degree  for  a  smaller  dant  produced  a  receipt  signed  by  the 

sum,  if  it  present  no  easier  or  better  re-  plaintiff,  for  the  composition,  and  which 

medy,  cannot  be  pleaded    in   an  action  purported  to  be  in  full  of  all  demands, 

for  the  larger  one,  has  frequently  been  and  it  was  urged  that  the  receipt  was 

affirmed  since  the  decision  of  Cumber  V.  either  a  discharge  of  tlie   promise,    or 

Wane.     In  Fitch  v.  Sutton,  5  East,  230,  that  the  promise  itself  was  void,  as  be- 

the  action  was  indebitatus  assumpsit  for  ing  a  fraud  upon  liis  other  creditors,  or 

goods  sold   and  delivered.      Plea   non  that,  at  all  events,  the  plaintiff  ought 

assumpsit.     At  the  trial  it  appeared  that  not  to  have  declared  upon  the  original 

the  defendant,  who   owed  the  plaintiff  cause  of  action,  but  specially  upon  the 

50Z.,  had  compounded  with  his  creditors,  new  promise   to   pay    when   of  ability, 

and   paid  them  seven  shillings   in  the  But  the  court  in  banc,  after  a  verdict 

pound,  and,   at   the  time  of  such  pay-  for    the    defendant,    made    a   rule   for 

ment  to  the   plaintiff,  promised  to  pay  a    new   trial    absolute   on   the   express 

him  the  residue  of  his   debt,  when  he  groimd  that  the  acceptance  of  17^.  10s. 

should  be  of  ability  so  to  do,  which  he  could  not  be  a  satisfaction    for  a  debt 

was  proved  to  have  been  before  this  action  of  50?.      "There  must  be  some  consi- 
VoL.  I.— 21 


322 


SMITHS    LEADING    CASES. 


deration,"  said  Lord  Ellenborough,"  for 
the  relinquishment  of  the  residue,  some- 
thing coUateral,  to  show  the  possibility 
of  benefit  to  the  party  relinquishing  his 
further  claim,  otherwise  the  agreement 
is  nudum  pactum.  But  the  mere  pro- 
mise to  pay  the  rest,  when  of  ability, 
puts  the  plaintiff  in  no  better  condition 
thon  he  was  before.  It  was  expressly 
determined  in  Cumber  v.  Wane,  that 
acceptance  of  a  security  for  a  lesser 
sum  cannot  be  pleaded  in  satisfaction 
of  a  similar  security  for  a  greater.  And 
though  that  case  was  said  by  me,  in 
argument  in  Heathcote  v.  Crookshanks, 
to  have  been  denied  to  be  law,  and  in 
confirmation  of  that  xMr.  J.  Buller  after- 
wards referred  to  a  case,  stated  to  be 
that  of  Hardcastle  v.  Howard,  H.  26  G. 
3,  yet  I  cannot  find  any  case  of  that  sort, 
and  none  has  been  now  referred  to:  on 
the  contrary,  the  authority  of  Cumber 
r  *1dS  1  *^*  ^^^"^  is  directly  supported 
|_  148  J  jjy  piiinell's  case,  which  never 
appears  to  have  been  questioned."  The 
other  judges  concurred,  and  Lawrence, 
J.,  referred  to  Co.  Litt.  212,  b.,  and  to 
Adams  v.  Tapling,  4  Mod.  68,  as  con- 
firmatory of  the  same  doctrine,  in  the 
former  of  which  it  was  laid  down  that 
"  where  the  condition  is  for  payment  of 
20Z.,  the  obligor  or  feofler  cannot,  at  the 
time  appointed,  pay  a  lesser  sum  in  sat- 
isfaction of  the  whole,  because  it  is  ap- 
parent that  a  lesser  sum  cannot  be  a  sat- 
isfaction of  a  greater.  But  if  the  obli- 
gee or  feoffee  do  at  the. day  receive  part, 
and  thereof  make  an  acquittance  under 
his  seal,  in  full  satisfaction  of  the  whole, 
it  is  sufficient,  by  reason  the  deed  amount- 
eth  to  an  acquittance  of  the  whole.  If 
the  obligor  or  lessor  pay  a  lesser  sum, 
either  before  the  day,  or  at  another 
place,  than  is  limited  by  the  condition, 
and  the  obligee  or  feoffee  receiveth  it, 
this  is  a  good  satisfaction."  (See  the 
cases  on  this  point  collected  S.  N.  P. 
Debt  on  Bond  ;  and  see  Worthington  v. 
Wigley,  3  Bingh.  N.  C.  454.) 

Fitch  V.  Sutton  is  stated  thus  at 
length,  because  it  is  perhaps  more  fre- 
quently referred  to  than  any  other  case 
upon  tiiis  subject;  the  doctrine  there 
laid  down,  viz.,  tliat  a  similar  security 
for  a  smaller  debt  cannot  be  pleaded  in 
satisfaction  of  a  larger  one,  has  been, 
frequently  affirmed,  both  before  and 
since.  See  Heathcote  v.  Crookshanks, 
2  T,  R.  24;  Pinnell's  case,  5  Rep. 
117 ;  Lynn  v.  Bruce,  2  Hen.  Bl.  317 ; 
Thomas  v.  Heathoi-n,  2  B.  &  C.  477 ;  3 


D.  &  R.  647,  S.  C.  And  though  it  was 
once  ruled  at  Nisi  Prius,  that  a  creditor 
who  had  given  a  receipt  in  full  of  all 
demands,  would  be  thereby  precluded 
from  insisting  afterwards  upon  any  de- 
mand prior  to  such  receipt ;  Alner  v. 
George,  1  Camp.  392:  yet  it  is  clear 
both  upon  general  principle,  and  from 
the  decisions  in  Fitch  v.  Sutton,  and 
other  cases,  that  such  an  instrument, 
not  being  an  estoppel,  cannot  prevent 
the  plaintiff"  from  insisting  that  part  of 
his  demand  remains  unsatisfied.  See 
Graves  v.  Kee,  3  B.  &  A<1.  313;  Skaife 
V.  Jackson,  3  B.  &  C.  421 ;  Stratton  v. 
Rastall,  2  T.  R.  366. 

It  must  be  observed,  that  later  cases 
seem  to  have  engrafted  on  the  doctrine, 
that  a  smaller  sum  can  be-  no  satisfac- 
tion for  a  larger  one  payable  in  the  same 
manner,  this  distinction,  that,  although, 
where  there  is  a  liquidated  debt,  the 
rule  laid  down  in  Cumber  v.  Wane  pre- 
vails, yet,  if  there  be  not  a  liquidated 
debt,  but  an  unliquidated  demand  of  pe- 
cuniary damages,  in  that  case  the  ac- 
ceptance of  a  smaller  sum  than  the 
plaintiff"  may  have  originally  claimed 
will  be  a  .satisfaction  of  his  whole  de- 
mand, and  a  good  answer  to  an  action  in 
respect  of  it.  This  distinction  seems 
to  have  originated  in  the  case  of  Long- 
ridge  V.  Dorville,  5  B.  &  A.  117  ;  it  was 
discussed  in  Watters  v.  Smith,  2  B.  & 
Adol.  889,  and  approved  in  Wilkinson  v. 
Byers,  1  Adol.  &  Ell.  106.  That  was 
an  action  of  assumpsit ;  the  declaration 
stated  that  T.  R.,  as  the  defendant's 
attorney,  had  sued  the  plaintitf  in  the 
Palace  Court  for  13Z.  10*.,  which  action 
was  depending;  and  thereupon,  in  con- 
sideration that  the  plaintiff"  would  pay 
the  defendant  the  Vdl.  10s.,  the  defend- 
ant promised  the  plaintifff  to  settle  with 
the  said  attorney  for  the  costs  of  the 
action,  and  indemnify  the  plaintiff" 
against  them;  that  plaintiff" accordingly 
paid  the  13Z.  10s. ;  but  that  defendant 
neglected  to  settle  with  the  attorney, 
who  proceeded  with  the  action  and 
signed  judgment  against  the  plaintiff', 
who  was  obliged  to  pay  11.  10s.  costs, 
and  3Z.  in  endeavouring  to  set  aside  the 
judgment.  At  the  trial,  it  appeared 
that  Byers,  the  present  defendant,  was 
a  wood-turner,  who  had  done  work  for 
Wilkinson,  the  present  plaintiff,  to  reco- 
ver a  compensation  tor  which  the  action 
had  been  brought.  A  verdict  was  found 
for  the  plaintiff',  subject  to  the  opinion  of 
the  court,  upon  the  question,  whether, 


CUMBER    V.     WANE. 


323 


as  the  payment  of  the  I'Sl.  10s.  was  a 
payment  in  discharge  of  an  admitted 
debt,  it  could  be  any  consideration  for 
the  defendant's  promise  to  indemnify  the 
plaintiff  against  the  costs  of  the  Palace 
Court  action.  The  court  held  that  the 
verdict  was  right.  "The  case,"  said 
Parke,  J.,  "  may  be  decided  shortly  on 
this  ground.  If  an  action  be  brought  on 
a  quantum  meruit,  and  the  defendant 
agree  to  pay  a  less  sum  than  the  de- 
mand in  full,  that  is  a  good  considera- 
tion for  a  promise  by  the  plaintiff  to 
pay  his  own  costs,  and  proceed  no  fur- 
ther. Payment  of  a  less  sum  than  the 
demand  has  been  held  to  be  no  satisfac- 
tion in  the  case  of  a  liquidated  debt; 
but  where  the  debt  is  unliquidated,  it  is 
sufficient.  Now,  here  we  cannot  say 
that  *there  was   originally   any 


[*149] 


certain     demand.      A    jury,     if 


asked,  could  not,  in  my  opinion,  have 
said  so.  In  the  great  majority  of  actions 
of  this  nature,  for  work,  labour,  and 
goods  sold,  it  is  not  a  specific  sum  that 
forms  the  subject-matter  of  the  action; 
and,  unless  that  could  have  been  shown 
in  the  present  case,  there  was  a  good 
consideration  for  the  promise."  Vide 
tamen  per  Littledale,  J.,  in  Wright  v. 
Acres,  6  A.  &  E.  729.  The  principle 
laid  down  in  Longridge  v.  Dorville  was 
approved  of  in  Atlee  v.  Backhouse,  3  M. 
&.  Welsh.  6.31,  per  Parke,  B.  In  Down 
V.  Rogers,  9  A.  &  E.  121,  a  plea  of  pay- 
ment of  61.  10s.  in  satisfaction  of  200/. 
was  held  bad  after  verdict.  No  reason 
is  assigned  for  the  decision,  but  probably 
it  may  have  proceeded  on  the  ground 
that  the  plaintiff's  demand  (which  was 
for  use  and  occupation,  agistment  and  on 
an  account  stated)  was,  prima  facie,  to 
be  considered  liquidated,  and  that,  if  the 
amount  was  in  dispute  at  the  time  of 
the  accord,  that  ought  to  liave  been 
pleaded  specially;  in  Wilkinson  v. 
Byers,  it  will  be  remembered  that  the 
special  matter  appeared  on  the  declara- 
tion. [In  the  late  case  of  Sibree  v. 
Tripp,  15  M.  &  W.  23,  it  is  determined 
that  a  plea  of  delivery  and  acceptance 
of  the  debtor's  negotiable  note  for  a 
smaller  sum  in  full  satisfaction  and  dis- 
charge of  a  larger  sum,  is  good :  and 
in  this  case  the  authority  of  Cumber  v. 
Wane  is  materially  shaken.] 

It  was  once  thought,  that  when,  upon 
tlie  dissolution  of  a  firm,  the  partner  who 
remained  in  trade  agreed,  as  generally 
happens,  to  take  upon  himself  the  debts 
of  the  late  firm,  a  creditor  of  the  whole 


body  viTOuld  not,    by  assenting   to   this 
arrangement,     discharge    the    retiring 
partner  from  liability  :  a  notion  princi- 
pally founded  on  the  decisions  in  David 
V.    Ellice,  5   B.   &  C.    196;   Lodge  v. 
Dicas,  3  B.  &  A.  611 ;    by  which,  how- 
ever, it  was  not  perhaps  warranted  to 
its  full   extent.     This  doctrine,   which, 
was  based  on  a  ground  similar  to  that 
on  which  Cumber  v.  Wane  was  decided, 
viz.  that  there  would  be  no  consideration 
to  the  creditor  for  such  an  arrangement, 
had  been   much  complained  of,  and  at 
last  came  to  be  canvassed  solemnly  in 
Thompson  v.  Percival,  5   B.   &.   Adol. 
925;  3  Nev.   &  Man.  167.     That  was 
an  action   against  James   and   Charles 
Percival,  for  goods  sold  and  delivered. 
James  pleaded  bankruptcy,  on  which  the 
plaintiff  as  to  him  entered  a  nolle  pro- 
sequi.     Charles   pleaded    the    general 
issue,  and  at  the  trial  it  appeared  that 
James  and  Charles  had  been  in  partner- 
ship, which  was  dissolved  in  the  usual 
way,  James  to  continue  in  the  business, 
and   to  receive  and  pay  all  debts.     At 
the  time  when  notice  of  the  dissolution 
was  first  given  to  the  plaintiff",  he  had 
a  demand  on  the  firm,  for  which  James 
told  him  he  must  look  to  him  alone.     He 
afterwards  drew  a  bill   on  James  for  its 
amount,  which  was  dishonoured.     Upon 
these  facts,  a  verdict  being  found  for  the 
plaintiff',  the  court  granted  a  new  trial, 
in  order  that  the  jury  might  be  asked 
whether  the  plaintiff  had  not  agreed  to 
accept  the  individual  liability  of  James, 
instead  of  the  joint  liability  of  James  and 
Charles  ;  and  it  was  held,  that,  if  that 
question  should  be  answered  in  the  affir- 
mative, the  defendant  would  be  entitled 
to  a  verdict.     "  Many  cases."  said  the 
Lord  Chief  Justice,  delivering  the  judg- 
ment of  the  court,  "  may  be  conceived, 
in  which  the  sole  liability  of  one  of  two 
debtors  may  be  more  beneficial  that  the 
joint  liability  of  two,  either  in  respect  of 
the  solvency  of  the  parties  or  the  con- 
venience of  the  remedy,  as  in  cases  of 
bankruptcy,  survivorship,  or  in  various 
other  ways;  and  whether  it  was  actually 
more  beneficial  in  each  particular  case 
cannot  be  made  the  subject  of  inquiry." 
Ace.  Winter  v.  Innes,  4  M.  &  Cr.  109. 
In  Kirwan  v.  Kirwan,  4  Tyrwh.  491,  a 
similar  point  occurred.     That  case  was 
decided    upon    special    circumstances ; 
but  from  it,  as  well  as  from  Tiiompson 
v.  Percival,  the  following  rule  may  be_ 
collected  :  viz.  that  mere  knowledge  of 
such  an  arrangement  amongst  members 


324 


SMITHS     LEADING    CASES. 


of  a  partnership  about  to  be  dissolved 
will  not  bind  the  creditor  of  the  firm, 
Lut  that  his  own  agreement  to  accept 
the  transfer  of  liability  will;  and  that 
the  question,  whether  he  have,  or  have 
not,  entered  into  such  an  agreement,  is 
a  question  proper  to  be  decided  upon  by 
a  jury. 

There  is  another  class  of  cases  also  of 
frequent  occurrence,  and  of  great  prac- 
tical importance,  which  are  exempted 
from  the  general  doctrine  laid  down  in 
Cumber  v.  Wane,  though  once  supposed 
to  fall  within  it;  those,  videlicet,  in 
which  a  debtor  has  induced  a  number  of 
his  creditors  to  accept  a  composition 
amounting  to  less  than  their  entire  de- 
mand. Such  an  agreement,  if  entered 
into  by  a  number  of  creditors,  each  act- 
ing on  the  faith  of  the  engagement  of 
the  others,  will  be  binding  upon  them  ; 
for  each,  in  that  case,  has  the  undertak- 
ings of  the  rest  as  a  consideration  for  his 
own  undertaking.  Reay  v.  White,  3 
Tyrw.  596.  [See  Aiken  v.  Price,  1 
Dudley,  50.]  And  so  of  an  agreement 
to  give  time.  Goode  v.  Cheeseman,  2 
B.  &  Ad.  328.  But  if  one  of  the  credi- 
tors be  afterwards  refused  the  benefit 
held  out  to  him  by  the  arrangement,  it 
will  cease  to  be  binding  on  him.  Gar- 
rard V.  Woolner,  8  Bing.  258.  So,  if 
the  consideration  in  any  manner  fails, 
the  agreement  is  at  an  end.  Thus,  if 
some  creditors  sign  on  the  faith  that 
others  will  do  so,  if  the  others  hold  out, 
those  who  have  subscribed  already  are 
not  bound.  Reay  v.  Richardson,  2  C. 
M.  &  R.  422.  So  if  it  purport  to  pass 
(-^,_p.-|an  *interest  in  lands,  but  want 
L  J  the  formalities  required  by  the 
Statute  of  Frauds,-  it  will  not  bind  the 
creditors.  Alchin  v.  Hopkins,  1  Bing. 
N.  S.  G9.  Nor  will  the  debtor  be  en- 
titled to  the  benefit  of  it  if  he  neglect 
to  perform  accurately  what  is  to  be 
done  on  his  part.  Thus  he  must  ten- 
der the  composition  money  on  the- ap- 
pointed day  ;  for,  as  Lord  Ellenborough 
said,  in  Cranley  v.  Hillary,  2  M.  &  S, 
120,  the  party  to  be  discharged  is  bound 
to  do  the  act  which  is  to  discharge  him  ; 
accord.  Shiptoa  v.  Casson,  6  B.  &  C. 
378;  Wenham  v.  Fovvle,  3  Dowl.  43; 
unless  indeed  the  creditor  have  posi- 
tively refused  to  accept  less  than  his 
original  demand,  in  which  case  he  is 
taken  to  have  waived  a  tender.     Reay 


V.  Whyte,  3  Tyrwh.  596.     See  Cooper 
V.  Phillips,  5  Tyrwh.  170. 

The  general  doctrine  in  Cumber  v. 
Wayne,  and  the  reason  of  all  the  excep- 
tions and  distinctions  which  have  been 
engrafted  on  it,  may  perhaps  be  summed 
up  as  follows:  viz.  that  a  creditor  can- 
not bind  himself  by  a  simple  agreement 
to  accept  a  smaller  sum  in  lieu  of  an 
ascertained  debt  of  larger  amount,  such 
an  agreement  being  nudum  pactum.  But 
if  there  be  any  benefit,  or  even  any 
legal  possibility  of  benefit,  to  the  credi- 
tor, thrown  in,  that  additional  weight 
will  turn  the  scale,  and  render  the  con- 
sideration sufficient  to  support  the  agree- 
ment. See  Steinman  v.  Magnus,  2 
Camp.  124;  11  East,  390;  Bradley  v. 
Gregory,  2  Campb.  383;  Wood  v.  Ro- 
berts, 2  Stark.  417;  Boothby  v.  Sow- 
den,  3  Camp.  175.  It  is  laid  down  in 
some  of  the  earlier  authorities,  tliat  an" 
accord  to  avail  must  be  executed ;  and 
that  doctrine  is  affirmed  by  Bayley  v. 
Homan,  3  Bing.  N.  C.  915.  See  Allies 
v..  Probyn,  5  Tyrwh.  1079;  Edwards  v. 
Chapman,  1  M.  &  Welsh.  231  ;  Reeves 
v.  Hearne,  1  M.  &  W.  326  ;  Colling- 
bourne  v.  Mantell,  5  M.  &  W.  292.  On 
the  other  hand,  it  is  said  in  Com.  Di.  B. 
4,  "  An  accord  with  mutual  promises  to 
perform  is  good,  though  the  thing  be  not 
performed  at  the  time  of  action,  for  the 
party  had  a  remedy  to  compel  the  per- 
formance." See  Good  v.  Cheeseman, 
ubi  supra.  The  rational  distinction 
seems  to  be,  that  if  the  promise  be  re- 
ceived in  satisfaction,  it  is  a  good  satis- 
faction ;  but  if  the  pei-formance,  not  the 
promise,  is  intended  to  operate  in  satis- 
faction, there  shall  be  no  satisfaction 
without  performanee.  See  Reeves  v. 
Hearne,  1  M.  &  W.  326.  The  same 
distinction  is  made  in  the  cases  cited  in 
the  notes  to  Cutter  v.  Powell,  vol.  ii., 
where  it  is  held  that,  where  \he  promise 
on  one  side  is  the  consideration  for  that 
on  the  olher,  ptrformance  is  not  a  con- 
dition precedent  to  the  right  of  action. 

The  second  point  decided  in  this  case 
is  an  exemplification  of  that  maxim  of 
law — Actus  curia?  nemini  facit  injuriain, 
for  the  delay  is  the  act  of  the  court, 
therefore  the  parties  should  not  suffer  by 
it.  Ace.  Toulmin  v.  Anderson,  1  Taunt. 
385.  See  I^anman  v.  Lord  Audley,  2 
M.  &  W.  535 ;  Vaughan  v.  Wilson,  4 
Bing.  N.  C.  116. 


CUMBER     V.     WANE.  325 

To  constitute  a  good  accord  and  satisfaction,  the  following  particulars 
seems  to  be  necessary, 

1.  The  matter  agreed  to  be  received  in  satisfaction  of  the  debt,  must  be 
something  of  legal  value,  to  which  the  creditor  before  was  not  entitled. 

2.  Every  part  of  the  matter  agreed  to  be  received  as  satisfaction,  must  be 
effectual,  so  that  if  a  part  fail,  or  do  not  take  effect,  the  whole  agreement  is 
bad. 

It  seems  from  this,  that  the  legal  notion  of  accord  is,  a  new  agreement 
on  a  new  consideration,  to  discharge  the  debtor  ;  and  this  agreement  comes 
within  the  general  principles  of  law  as  to  contracts  ;  the  consideration  must 
have  legal  value,  and  every  part  of  the  alleged  consideration  must  take 
effect. 

3.  The  accord  must  be  executed ;  and  a  mere  executory  agreement  by 
the  debtor  can  never  be  pleaded  as  an  accord  and  satisfaction. 

4.  Another  rule  of  no  great  practical  value,  is,  that  the  matter  received 
in  satisfaction  must  be  given  by  the  debtor,  and  not  by  a  stranger:  Clow  v. 
Borst  and  Best,  6  Johnson,  37  ;  Stark's  Adm'r  v.  Thompson's  Ex'rs,  3 
Monroe,  296. 

These  are  the  technical  rules  which  relate  to  this  plea  ;  and  the  general 
principle  to  be  deduced  from  them,  in  regard  to  the  present  subject  is  ;  that 
any  thing  of  legal  value,  whether  a  chose  in  possession  or  in  action,  i.  e. 
any  legal  interest  or  right ;  which  the  creditor  had 'not  before  ;  agreed  to  be 
received,  and  actually  received,  in  full  satisfaction  of  the  debt,  is  a  good 
satisfaction,  without  regard  to  the  comparative  magnitude  of  the  satisfaction 
with  the  original  debt ;  and  may  be  pleaded  in  bar,  as  accord  and  satisfaction. 
The  matter  given  and  received  must  have  legal  value  and  be  of  advantage 
to  the  creditor  (or  a  disadvantage  to  the  other) ;  that  is,  must  vest  in  the 
creditor  an  interest  or  right  which  he  had  not  before  ;  and  hence,  giving 
what  was  really  the  creditor's  own  before,  or  giving  a  note  of  a  third 
person  which  from  the  infancy  of  the  person  making  it,  is  nought,  or 
assigning  accounts  or  orders  on  which  an  action  is  not  maintainable,  or 
where  the  assignment  is  not  valid,  is  bad  as  an  accord  and  satisfaction  ; 
because  there  is  no  valid  consideration  for  the  accord.  Keeler  v.  Neal,  2 
Watts,  424  ;  Davis  v.  Noaks,  3  J.  J.  Marshall,  494 ;  Commonwealth  for  the 
use  of  Johnston  v.  Miller,  5  iMonroe,  205  ;  Nave  v.  Fletcher,  4  Littell,  242  ; 
Buddicum  v.  Kirk,  3  Cranch,  293  ;  and  impart  of  the  consideration  agreed 
on  be  not  performed,  the  whole  accord  fails  ;  Nave  v.  Fletcher.  But,  if 
the  consideration  of  the  accord  be,  some  interest  or  right  of  action  vested  in 
the  creditor  which  he  had  not  before,  though  it  be  smaller  than  the  original 
debt,  this  is  good  ;  and  if  it  be  proved  that  it  was  agreed  that  this  matter 
should  be  a  satisfaction  of  the  debt  ;  this  constitutes  a  valid  accord  and  sat- 
isfaction :  it  being  necessary  and  sufficient  to  a  plea  of  accord  and  satisfac- 
tion, that  there  should  be  a  promise  on  valid  consideration,  to  treat  the  debt 
as  satisfied,  and  that  this  contract  should  be  executed  by  the  delivery  and 
acceptance  of  the  consideration  :  Hence,  delivery  and  acceptance  in  satis- 
faction, of  some  collateral  thing  ;  as,  commodities,  though  confessedly  of  less 
value  than  the  money  due,  Jones  v.  Bullett,  2  Littell,  49  ;  or,  the  promis- 
sory note  or  endorsement  of  a  third  person,  Booth  v.  Smith,  3  Wendell,  66 ; 
New  York  Stale  Bank  v.  Fletcher,  5  id.  85 ;  Frisbie  &  M'Kinley  v.  Ear- 
ned and  Corning,  21  id.  451  ;  Bullen  et  al.  v.  i\I-Gillicuddy,  2  Dana,  90; 


326  smith's    LEADING    CASES. 

Pope  V.  Tunstall  and  Waring,  3  Pike,  209  ;  and  even  though  the  note  of 
the  third  person  should  he  for  a  less  sum  than  the  original  debt,  Brooks  and 
another  v.  White,  2  Metcalf,  283 ;  Boyd  and  Suydam  v.  Hitchcock,  20 
Johnson,  76;  Le  Page  v.  M'Crea,  1  Wendell,  164  ;  Kellogg  and  Dumont 
V.  Richards  and  Sherman,  14  id.  116;  or  services  rendered  by  the  debtor, 
such  as  building,  &c.,  Blinn  v.  Chester,  5  Day,  359  ;  or  an  assignment  of 
all  the  debtor's  stock  in  trade  and  outstanding  debts,  Watkinson  v.  Ingleby 
and  Stokes,  5  Johnson,  386  ;  or,  of  specific  real  estate,  Eaton  v.  Lincoln,  13 
Massachusetts,  424 ;  or  any  chattel,  per  M'Kean,  C.  J.,  in  Musgrove  v. 
Gibbs,  1  Dallas,  216;  or  a  smaller  sum  of  money  before  the  day  on  which 
the  original  debt  was  due,  or  at  another  place.  Smith  v.  Brown,  3  Hawks, 
580;  Brooks  and  another  v.  White,  2  Metculf,  283  ;  dictum  in  Milliken 
and  another  v.  Brown,  1  Rawle,  391.  400.  403  ;  will  all  sustain  the  plea  of 
accord  and  satisfaction. 

And  it  is  not  enough  that  there  should  be  a  clear  agreement  or  accord, 
and  a  sufficient  consideration,  but  the  agreement  or  accord  must  be  exe- 
cuted ;  Williams  v.  Stanton,  1  Root,  426 ;  Pope  v.  Tunstall  and  Waring,  3 
Pike,  209.  The  plea  must  allege  that  the  matter  was  accepted  in  satisfac- 
tion, Sinard  v.  Patterson,  3  Blackford,  354  ;  Maze  v.  Miller,  1  Washington 
C.  C.  328,  329  ;  mere  readiness  to  perform  the  accord,  or  a  tender  of  per- 
formance, will  not  do,  and  a  plea  of  accord  and  tender  is  bad  upon  demurrer, 
Russell  V.  Lytle,  6  Wendell,  390;  Hawley  v.  Foote,  19  id.  516;  The 
Brooklyn  Bank  v.  De  Grauw  and  others,  23  id.  342  ;  see  Spruneberger  v. 
Dentlee,  4  Watts,  126,  and  Rising  v.  Patterson,  5  Wharton,  316.  Coit  v. 
Houston,  3  Johnson's  Cases,  243,  and  Latapee  v.  Pecholier,  2  Washington 
C.  C  180.  184,  contain  dicta  a  little  contra.  In  Fellows  and  others  v. 
Stevens,  24  Wendell,  294,  it  was  held,  that  tender  of  satisfaction  on  an 
accord  is  not  sufficient  as  between  debtor  and  creditor  ;  but  if  other  credi- 
tors are  parties  to  the  arrangement,  a  tender  is  sufficient ;  but  even  then  it 
would  seem  that  it  cannot  be  pleaded  as  accord  and  satisfaction.  Proof  of 
delivery  to,  and  acceptance  by,  an  agent  of  the  creditor,  or  one  whose  act  is 
afterwards  ratified,  will  sustain  the  plea  of  accord  and  satisfaction  ;  Ander- 
son V.  Highland  Turnpike  Co.,  16  Johnson,  86  ;  Evans  v.  Wells,  22  Wen- 
dell, 325  ;  Eaton  v.  Lincoln,  13  Massachusetts,  424;  and  if  a  judgment  be 
given  to  a  trustee  for  satisfaction  of  a  creditor,  and  the  creditor  affirm  the 
arrangement  by  proceeding  on  the  judgment,  this  is  an  acceptance  ;  and  the 
plea  of  accord  and  satisfaction  will  be  good.  Seaman  v.  Haskins,  2  John- 
son's Cases,  195. 

These  principles  appl}^  to  debts  due  by  instruments  under  seal,  as  well 
as  those  due  upon  simple  contract:  but  this  distinction  is  taken;  that  a 
parol  accord  and  satisfaction  cannot  discharge  the  instrument  or  obligation, 
but  may  discharge  the  money  due  upon  it.  In  Strang  v.  A.  and  J.  Holmes, 
7  Cowen,  225,  it  is  decided,  that  giving  and  accepting  some  third  thing, 
as,  a  conveyance  of  land,  in  satisfaction  of  a  debt  due  by  bond,  is  a  good 
satisfaction  ;  and  this,  if  done  after  forfeiture  as  well  as  before,  because, 
since  the  statute  4  Ann.  ch.  16,  s.  13,  the  amount  due  upon  the  bond  after 
forfeiture  as  well  as  before,  is,  the  sum  expressed  in  the  condition  :  and  the 
cases  there  reviewed,  show  that  if  such  satisfaction  be  specially  pleaded, 
the  plea  must  allege  that  the  matter  was  given  and  accepted  in  full  satis- 
faction of  the  amount  due  on  the  bond,  or  the  sum  mentioned  in  the  condi- 
tion, and  not,  in  satisfaction  of  the  bond  or  obligation,  for  that  can  only  be 


CUMBER    V.     WANE.  327 

discharged  by  instrument  under  seal;  but  if  the  satisfaction  be  shmvn  by 
notice  under  the  general  issue,  this  technicality  may  be  avoided.  Upon  the 
same  distinction  it  is,  that  accord  and  satisfaction  before  breach,  \Vithout 
release  by  deed,  is  no  bar  to  an  action  of  covenant :  but  after  breach,  it  is  of 
the  damages  ;  Harper  v.  Hampton,  1  Harris  &  Johnson,  622.  675  ;  Smith  v. 
Brown,  3  Plawks,  580  ;  Payne  v.  Barnet,  2  Marshall's  Kentucky,  312 :  and 
to  the  same  effect  is  the  note  of  Serjt.  Manning,  in  6  M.  &  Gr.  262,  note  (a). 
It  appears  from  the  foregoing  remarks,  that  to  make  a  good  accord  and 
satisfaction,  the  matter  given  and  received  must  be  some  new  thing,  to  which 
the  creditor  before  had  no  right.  It  seems  to  be  reasonably  well  settled  by 
the  American  cases,  that  the  giving  and  accepting  of  a  smaller  sum  of  money 
in  payment  or  satisfaction  of  a  larger  one  due,  is  not  a  valid  discharge,  and 
cannot  be  pleaded,  either  as  payment,  or  as  accord  and  satisfaction.  Dederick 
V.  Leman  and  others,  9  Johnson,  333  ;  Harrison  v.  Wilcox  &  Close,  2  id, 
448  ;  dictum  in  Johnston  v.  Brannan,  5  id.  268.  271  ;  Seymour  v.  Minturn, 
17  id.  169;  Latapee  v.  Pecholier,  2  Wash.  C.  C.  180.  184.  In  Johnston 
V.  Brannan,  this  is  spoken  of,  as  the  "  rigid  and  rather  unreasonable  rule  of 
the  old  law-:"  and  in  Kellogg  &  Dumontv.  Richards  &Sherman,  14  Wen- 
dell, 116,  where  the  acceptance  of  the  promissory  note  of  a  third  party,  for 
a  less  sum,  was  held  to  be  a  good  accord  and  satisfaction,  the  court,  per 
Nelson,  J.,  said,  "  It  is  true,  there  does  not  seem  to  be  much,  if  any,  ground 
for  distinction,  between  such  a  case,  and  one  where  a  less  sum  of  money  is- 
paid,  and  agreed  to  be  accepted  in  full,  which  would  not  be  a  good  plea. 
*  *  The  rule  that  the  payment  of  a  less  sum  of  money,  though  agreed 
by  the  plaintiff  to  be  received  in  full  satisfaction  of  a  debt  exceeding  that 
amount,  shall  not  be  so  considered  in  contemplation  of  law,  is  technical,  and 
not  very  well  supported  by  reason.  Courts,  therefore,  have  departed  from 
it  upon  slight  distinctions."  In  Brooks  and  another  v.  Whitf  2  Metcalf, 
283,  where  the  same  point  is  decided,  thecourt,  per  Dewey,  J.,  says,  "The 
foundation  of  the  rule  seems  to  be,  that,  in  the  case  of  the  acceptance  of  a 
less  sura  of  money  in  discharge  of  a  debt,  inasmuch  as  there  is  no  new  con- 
sideration, no  benefit  accruing  to  the  creditor,  and  no  damage  to  the  debtor, 
the  creditor  may  violate  with  legal  impunitj''  his  promise  to  his  debtor, 
however  freely  and  understandingly  made.  This  rule,  which  obviously 
may  be  urged  in  violation  of  good  faith,  is  not  to  be  extended  beyond  its 
precise  import,  and  whenever  the  technical  reason  does  not  exist,  the  rule 
itself  is  not  to  be  applied.  Hence  judges  have  been  disposed  to  take  out  of 
its  application,  all  those  cases  where  there  was  any  new  consideration,  or 
any  collateral  benefit  receivedby  the  payee,  which  might  raise  a  technical 
legal  consideration,  although  it  was  quite  apparent  that  such  consideration 
■was  for  less  than  the  amount  of  the  sum  due."  However,  the  case  of  Smith 
V.  Bartholomew  and  another,  1  Metcalf,  276,  affirms  the  old  principle,  and 
comes  fairly  up  to  the  mark  of  Fitch  v.  Sutton.  It  was  a  suit  against  G.  & 
H.  on  a  joint  and  several  note  by  them  to  W.,  or  bearer  ;  G.  was  defaulted, 
and  the  suit  defended  by  H.,  who  produced  a  paper  signed  by  W.  acknow- 
ledging the  receipt  of  part  of  the  money  from  H.,  and  agreeing  to  look  to 
G.  for  the  rest.  It  will  be  observed,  that  the  note  had  passed  into  other 
hands,  and  that  might  have  afforded  sufficient  ground  for  taking  all  effect 
from  the  agreement;  but  the  court  did  not  go  on  that  ground  :  they  decid- 
ed, that  the  agreement  was  "  not  vahd  and  obligatory,  not  being  sustained 


328  smith's   leading   cases. 

by  a  sufficient  consideration,"  and  said ;  "  The  payment  of  a  debt  by  a 
debtor,  the  same  being  due  and  payable,  is  not  a  sufficient  consideration  to 
support  a  promise.  It  is  not  considered  as  any  detriment  to  the  debtor,  or 
benefit  to  the  creditor.  The  one  pays  only  what  he  was  bound  to  pay,  and 
the  other  receives  no  more  than  his  just  debt.  Such  a  consideration  is 
merely  nominal  and  insignificant,  and  no  consideration  at  all."  But  the 
case  of  Milliken  and  another  v.  Brown,  1  Rawle,  391,  of  which  the  circum- 
stances are  very  similar  to  the  preceding  one,  is  directly  opposed  to  it.  It 
is  there  decided,  that  accepting  from  one  of  three  joint  debtors,  one-third  of 
the  debt,  with  intent  to  exonerate  him,  is  a  valid  release  of  him,  and,  there- 
fore, a  release  of  all.  The  reason  upon  which  this  was  regarded  as  a  release, 
and  not  merely  as  an  agreement  not  to  sue,  may  be  peculiar  to  that  case  ; 
but  that  the  transaction  constituted  a  valid  discharge  of  the  one  who  paid, — 
in  other  words,  that  the  acceptance  of  one-third  of  a  debt  from  one  bound  to 
pay  the  whole,  with  intent  to  discharge  him,  is  a  valid  discharge, — is  decid- 
ed upon  reasons  which  appear  to  be  of  general  application.  The  case, 
according  to  the  explanation  given  by  the  chief  justice,  was  decided  on  the 
ground  that  "  the  creditor  had  agreed  on  suj/icient  consideration,  to  exone- 
rate one  of  the  three  debtors  entirely  from  liability,  and  the  most  sacred 
■principles  of  justice  required,  that  this  agreement  should  be  performed;" 
and  it  therefore  settles,  that  actual  payment  of  a  smaller  sum,  by  one  bound 
to  pay  a  larger  sum,  for  the  purpose  of  being  discharged,  is  a  good  consi- 
deration to  support  an  agreement  to  discharge  or  release  ;  and  may  be  con- 
sidered, so  far  as  Pennsylvania  is  concerned,  as  overthrowing  the  old  common 
law  rule  above  mentioned.  If  the  decision  of  this  case  was  at  all  grounded 
on  the  fact,  that  the  payment  was  made  during  a  stay  of  execution,  and, 
therefore,  before  the  money  was  attainable  by  process  of  law,  though  it  was 
fully  due  and  bearing  interest,  that  reason  will  apply  to  every  case :  for, 
whenever  a  debtor  pays  before  the  money  is  actually  made  b}^  the  sherifT. 
he  pays  voluntarily,  and  before  the  time  when  the  law  would  give  it  to  the 
creditor :  the  stay  of  execution  given  by  the  act  of  assembly,  being  merely 
a  provision  regulating  the  practice  and  process  of  courts  of  Jaw,  akin  pre- 
cisely to  those  which  require  a  delay  of  a  certain  number  of  days,  before 
judgment  by  default  can  be  had,  before  a  judgment  can  be  entered  on  a 
verdict,  before  execution  can,  in  any  case,  issue  on  a  judgment,  or  the  goods 
be  sold  on  execution.  This  reason,  which  appears  to  be  hinted  at  by  the 
chief  justice  in  Millikin  and  another  v.  Brovvn,  though  it  be  a  meagre  tech- 
nicality, seems  sufficient,  when  it  is  backed  by  the  good  sense  and  justice 
of  the  case,  to  bring  all  the  cases  within  the  distinction  of  Pinnell's  case. 
When  such  arrangements  are  bona  fide,  and  are  clearly  proved,  there  is 
doubtless  much  equity  in  protecting  them  :  they  amount  to  this  ;  the  credi- 
tor has  a  claim  upon  the  debtor, — this  claim  the  debtor  might  perhaps  defeat 
in  an  action, — certainly  could  delay, — may  postpone  to  the  payment  of  other 
creditors, — may  discharge  more  advantageously  to  himself  by  purchasing 
claims  of  others  upon  his  creditor, — all  which  he  has  a  perfect  right  to  do  : 
if,  then,  the  creditor  induce  him  to  give  him  priority  over  his  other  creditors, 
and  to  pay  him  some  part  of  the  debt  sooner  than  the  law  would  let  him 
have  any  payment,  by  a  promise  that  it  shall  be  a  discharge  of  the  debt, 
which  sum  the  debtor  otherwise  would  not  pay,  and  the  creditor  could  not 
compel  him  to  pay  ;  in  such  a  case,  it  would  be  a  fraud  upon  the  debtor  if 


CUMBER    V.     WANE.  329 

this  were  not  a  discharge.  But  all  this  takes  for  granted,  that  clear,  delibe- 
rate, bona  fide  character  of  the  agreement  to  discharge,  which  the  rule  of 
the  common  law  is  chiefly  designed  to  secure.  A  principle  so  deeply  esta- 
blished in  the  very  forms  and  elements  of  the  law,  and  which  has  so  long 
sustained  itself  in  the  courts,  has  something  better  than  a  mere  barren  tech- 
nicality to  rest  upon.  In  fact,  as  a  technical  rule,  it  may  be  doubled  whe- 
ther the  maxim  that  a  smaller  sum  cannot  be  a  satisfaction  of  a  larger  debt, 
could  apply  to  any  thing  but  a  bond,  which  the  old  law  regarded  as  an  actual 
gift  or  transfer  of  the  money,  and  gave  the  action  of  debt  for  the  detainer  of 
what  was  in  law  the  very  property  of  the  obligee  :  technically,  it  would  be 
difficult  to  make  it  apply  to  simple  contracts.  But  as  a  principle  of  evi- 
dence, this  rule,  which  requires  for  the  substantiation  of  such  agreements, 
either  a  surrender  of  the  instrument,  or  a  legal  release,  is  a  just,  wise,  and 
convenient  rule  ;  so  great  is  the  danger  of  fraud  and  mistake.  The  rule 
which  requires  a  deed  to  be  solemnly  sealed  and  delivered, — the  rule  which 
requires  the  word  heirs  in  a  deed  to  create  a  fee, — these  are  now  commonly 
regarded  as  mere  technicalities  :  but,  in  their  spring  and  essence,  what  are 
they  but  great  and  comprehensive  principles  of  evidence  and  policy  ?  design- 
ed to  promote  fairness,  and  to  ensure  certainly  and  repose  in  the  transactions 
of  men,  by  affording  a  sure,  simple,  obvious  test  of  the  validity  and  effect  of 
contracts  ?  The  whole  of  this  law  in  relation  to  accord  and  satisfaction, 
furnishes  one  of  the  many  instances  in  which  we  can  see  that  the  "old 
narrow  ordinances"  of  law,  are  designed  and  adapted  to  fix  and  guard  some 
vital  principle  of  equity  and  reason.  If  a  debt  has  been  paid,  there  is  the 
plea  of  payment :  if  satisfied  by  some  collateral  thing,  it  is  accord  and  satis- 
faction :  but  if  you  claim  to  have  been  released  from  the  whole  bond  or  debt, 
by  having  paid  a  part  of  it,  you  are  relying  upon  a  release  ;  and  to  know 
what  constitutes  a  valid  release,  you  are  referred  to  other  departments  of  the 
law,  and  to  general  and  established  rules  of  pleading,  which  cannot  be  dis- 
turbed without  shaking  the  most  inveterate  foundations  of  the  law. 

The  preceding  remarks  refer  to  the  question  of  the  legal  effect  of  a  par- 
tial payment,  alleged  to  have  been  received  in  full,  when  the  fact  of  the 
payment  being  but  partial,  stands  admitted  before  the  court.  But,  upon 
tlae  question  whether,  in  point  of  fact,  the  whole  debt  is  or  is  not  paid,  it 
appears  that  the  acknowledgement  of  the  creditor  that  the  payment  is  in 
full,  is  not  only  competent  evidence,  but  is  prima  facie  evidence,  that  the 
whole  is  paid.  The  case  of  Henderson  v.  Moore,  5  Cranch,  11,  is  a  strong 
case  to  this  effect.  Upon  the  plea  of  payment,  to  debt  on  bond,  it  appeared 
that,  the  defendant  owing  the  plaintiff  on  other  accounts,  the  plaintiff,  many 
3'ears  after  the  date  of  the  bond,  had  orally  acknowledged,  or  declared,  that 
he  had  received  a  certain  sum  from  a  debtor  of  the  defendant,  and  that  what 
he  so  received,  was  in  full  of  all  his  claims  against  the  defendant.  The 
court  below  decHned  instructing  the  jury,  as  prayed  by  the  plaintiff,  that  if 
they  were  satisfied  that  the  bond  had  not  been  fully  paid  offj  no  declaration 
of  the  plaintiff''s  '  that  his  claims  against  the  defendant  were  all  satisfied,' 
would  be  a  bar  to  this  recovery  ;  and  instructed  the  jury,  that  if  they  found, 
that  the  defendant  paid  the  plaintiffa  sum  of  money  less  than  the  amount 
mentioned  in  the  condition  of  the  bond,  which  the  plaintiff  then  acknow- 
ledged to  be  in  full  satisfaction  of  all  his  claims  against  the  defendant,  such 
payment  and  acknowledgment,  are  competent  evidence  upon  the  plea  of 


330  smith's   leading  cases. 

payment,  and  that  the  jury  may  and  ought  to  presume,  therefrom,  that  the 
whole  sum  in  the  condition  of  the  bond  has  been  paid  to  the  plaintiff,  unless 
such  presumption  be  repelled  bj'-  other  evidence  in  the  cause.  The  jury 
found  for  the  defendant;  and  the  Supreme  Court,  on  error,  said,  per  Mar- 
shall, C.  J.,  "That  there  was  no  error  in  the  opinion  of  the  court  below. 
Ji  part  of  the  money  due  on  the  bond  might  have  been  paid  before ; 
and  such  an  acknowledgment,  upon  receipt  of  a  sum  smaller  than  the 
amount  of  the  condition  of  the  bond,  was  good  evidence  upon  the  plea  of 
payment." 

That  a  mere  agreement,  unexecuted,  to  accept  a  smaller  sum  in  dis- 
charge of  a  larger,  is  not  valid,  seems  to  be  settled  ;  and  apparently  is  not 
contradicted  by  any  American  cases.  See  Spruneberger  v.  Dentler,  4 
Watts,  126;  Rising  v.  Patterson,  5  Wharton,  316. 

These  appear  to  be  the  general  principles  applicable  to  the  plea  of  accord 
and  satisfaction  ;  it  majr  be  proper  to  take  a  more  particular  notice  of  three 
cases  falling  within  them,  which  are  of  very  frequent  occurrence  ;  one, 
where  the  note  of  a  third  person  is  given  by  the  debtor ;  another,  where  the 
note  of  one  joint  debtor  or  partner  is  given  for  the  joint  or  partnership  debt ; 
the  third,  where  the  debtor's  own  negotiable  note  is  given. 

1.  The  note  or  bill  of  a  third  person  may  be  given  by  a  debtor  and  received 
by  the  creditor,  as  collateral  security,  as  conditional  payment,  that  is,  to  be 
a  satisfaction  if  and  when  paid,  or,  as  an  absolute  and  immediate  satisfac- 
tion and  discharge,  and  to  be  wholly  at  the  risk  of  the  creditor:  and  which 
of  these  three  it  will  be,  depends  entirely  upon  the  intention  of  the  parties, 
to  be  derived  from  all  the  circumstances  of  the  case. — the  mere  acceptance 
by  the  creditor,  of  the  negotiable  note  of  a  third  person,  makes  it  but  collat- 
eral security  ;  and  the  general  settled  principle  that  the  accpptance  of  col- 
lateral security  has  no  effect  whatever  on  the  legal  rights  and  liabilities  of 
the  parties  on  the  original  debt,  either  to  impair  or  suspend  the  right  of 
action,  Kemmil  v.  Wilson,  4  Washington  C.  C.  308;  Ripley  v.  Greenleaf, 
2  Vermont,  129;  Bank  of  Pennsylvania  v.  Potius,  10  Watts,  148,  applies 
equally  where  the  collateral  security  is  a  negotiable  note  ;  Weakly  v.  Bell 
and  Sterling,  9  Watts,  273,  and  see  Berghaus  v.  Alter,  id.  386  ;  the  creditor, 
however,  may  sue  upon  the  collateral  security  whenever  the  debt  becomes 
due,  for  a  creditor  may  press  all  his  securities  at  once.  Lishy  v.  O'Brien, 
4  Watts,  141. — If  the  negotiable  note  be  taken  as  payment,  this  is,  ordina- 
rily and  prima  facie,  but  conditional  payment ;  still  more  clearl}^  is  it  con- 
ditional payment  where  it  is  expressed  that  it  is  to  be  in  full  if  or  when  paid, 
as  in  Herring  v.  Sanger,  3  Johnson's  Cases,  71,  Tyson  and  others  v.  Pol- 
lock, 1  Penrose  &  Watts,  375,  and  Chapman  v.  Steinmitz,  1  Dallas,  261. 
See  James  v.  Williams,  13  M.  &  W.  828  ;  ClritTiths  v.  Owen,  id.  58  ;  Mail- 
lard  V.  The  Duke  of  Argyle,  6  M.  &  Gr.  40.  By  this  arrangement  of  con- 
ditional payment,  the  creditor  agrees  to  look  to  the  new  instrument,  prima- 
rily, as  the  fund  from  which  satisfaction  is  to  come,  and  to  postpone  the 
debtor's  personal  liability  till  then  ;  and  therefore  the  legal  effect  on  the 
original  debt  is,  an  extension  or  suspension  of  the  debtor's  liability  till  the 
collateral  note  falls  due,  Okie  v.  Spenser,  2  Wharton,  253  ;  and  there  is  no 
other  effect  on  it.  A  creditor  accepting  a  negotiable  note,  either  as  collate- 
ral security  or  as  a  conditional  payment,  is  bound  to  use  due  diligence 
in  demanding  payment  and  giving  notice  of  non-payment,  under  penalty 


CUMBER     V.     WANE.  331 

of  being  answerable  for  any  loss  incurretj  by  his  neglect ;  but  he   is  not 
bound  to  sue  upon  it.     Gallagher's  Executors  v.  Roberts  et  al.,  2  Wash- 
ington C.  C.  191 ;  Clark  v.  Young  &  Co.,  1  Cranch,  181  ;  Snyder  v.  Find- 
ley,  1  Coxe,  48  ;  Ormsby  and  another  v.  Fortune,   16  Sergeant  &  Rawle, 
302  ;  M'Leighlan  v.  Bovard,  4  Walts,  308  ;  Herring  v.  Sanger ;  Brewer 
V.  Jones,  3  Johnson,  230 ;  Woodcock  v.  Bennet,  1  Cowen,  713  :  in  Dayton 
V.  Trull,  23  Wend.  345,  it  was  held,  that  if  a  bill  be  received,  to  be  in  satis- 
faction when  paid,  it  will  be  presumed  that  the  bill  was  paid,  and  the  on  us  is 
on  the  plaintiff  of  proving  due  diligence,  or  such  facts  as  will  excuse  deraand 
and  notice. — The  note  of  a  third  person  will  oj^erate  as  an  absolute  and 
immediate  salisfaclion  and  discharge  of  the  debt,  if  such  be  the  intention 
and  understanding  of  the  parties:  and  the  distinction  on  this  point,  as  to 
the  first  presumption  of  intention,  is,  that  where  the  notes  of  a  third  person 
nre  accepted  in  payment  at  the  time  the  purchase  is  made,  this  is  to  be 
understood  as  an  exchange  or  barter  of  the  thing  purchased,  for  the  notes, 
and  the  notes  are  at  the  risk  of  the  purchaser,  Whitbeck  v.  Van  Ness,  11 
Johnson,  409,  unless  the'note  were   forged,  Markle  v.  Hatfield,  2  id.  455; 
and  be  returned  within  a  reasonable  time,  Raymond  v.  Baar,  13  id.  318  ;  or 
unless  there  was  a  fraudulent  concealment  of  the  fact  of  the  maker's  insol- 
vency, Willson  V.  Force,  6  id.  110;  or  a  false  assertion  of  the  note-maker's 
solvency,  which  probably  was  considered  a  guaranty,  Snyder  v.  Findley,  1 
Coxe,  48  ;  yet  if  the  fact  of  such  understanding  or  intention  be  negatived  by 
the  finding  of  the  jury,  it  is  no  discharge  ;  see  Porters  v.  Falcott  &  Bowers, 
1  Cowen,  359  :  but  where  the  notes  or  bills  of  a  third  person  are  given  for 
a  pre-existing  debt,  there  the  presumption  is  the  other  way,  and  although 
it  will  still  be  an  absolute  discharge  where  such  an  intention  and  agreement 
can  clearly  be  inferred  from  the  evidence,  or  is  necessary  to  the  fairness  of 
the  case,  James  and  Flack  v.  Hackley  and  others,  16  Johnson,  273  ;   Brown 
V.  Jackson,  2  Washington  C.  C.  24;  yet  nothing  short  of  an  actual  agree- 
ment, or  some  evidence  from  which  a  positive  inference  is  to  be  made  of  an 
intention  entirely  to  discharge  the  debtor  and  to  take  the  security  of  the 
third  person  in  lieu  and  substitution  of  the  debtor's,  or  fraud,  will  suffice;- 
merely  receipting  the  notes  as  cash,  or  giving  a  receipt  in  full,  or  receipt- 
ing the  notes  as  being  in  payment  of  the  debt,  will  not,  alone,  be  sufficient 
to  prove  that  the  notes  were   taken,  not  as  conditional  payment,  but  as  an 
immediate  and  absolute  discharge;  Tobey  v.  Barker,  5  Johnson,  68  ;  John- 
son V.  Weed  and  another,  9  id.  310 ;  Isaac  Roget  v.  Merritt  and  Clapp,  2 
Caines,  117  ;  Maze  v.  Miller,  1  Washington  C.  C.  328  ;  Harris  and  Don- 
aldson V.  Lindsay,  4  id.  271  ;  Peter  v.  Beverly,  10  Peters,  534.  567  ;  Glenn 
V,  Smith,  2  Gill  &  Johtison,  494 ;  Perit  and  another  v.  Pitfield  and  others, 
5  Rawle,  166  ;  M'Ginn  v.  Holmes,  2  Watts,  121  ;  M'Lughlin  v.  Bovard,  4 
id.  308.  312.     But  the  later  New  York  cases  are  less  strict  in  requiring 
positive  evidence  of  an  intention  that  the  note  shall  be  at  the  risk  of  the 
creditor :  in  The  New  York  State  Bank  v.  Fletcher,  5  Wendell,  85,  it  was 
held  that  the  promissory  note  of  a  third  person  taken  by  express  agreement 
in  payment  of  a  judgment  is  an  extinguishment  of  a  preceding  debt ;  and 
in  Frisbie  and  M'Kinley  v.  Larned  and  Corning,  21  Wendell,  451,  it  was 
held  that  the  note  of  a  third   person,  received  as   payment  and  credited  on 
the  creditor's  books,  is  prima  facie  an  accord  and  satisfaction,  and  discharges 
the  debt,  unless  an  intention  to  receive  it  only  as  collateral  be  shown,  at  all 


332  smith's  leading   cases. 

events  is  competent  evidence  for  the  jury  ;  and  Cowen,  J.,  was  inclined  to 
think  that  generally,  in  the  absence  of  proof  that  it  was  collateral,  it  would 
be  a  satisfaction. 

2.  The  case  of  tlie  acceptance  of  a  note  of  one  partner  for  a  liability  of  the 
firm,  appears  to  be  considered  (except  in  New  York)  the  same  as  the  accept- 
ance of  the  note  of  a  third  person.     A  distinct  agreement,  by  a  creditor, 
upon  a  dissolution  of  a  partnership,  to  accept  the  notes  of  the  member  or 
members  continuing  in  business,  in  discharge  of  the  retiring  members,  is  a 
valid  discharge  of  them  ;  and   may  be  pleaded  in  bar  of  an  action  brought 
against  them.     Sheehy  v.  Mandeville  &  Jamesson,  6  Cranch,  253,  esta- 
blishes the  validity  of  such  an  arrangement,  when  set  forth  by  special  plea. 
In  that  case  the  plaintiff  had  sold  goods  to  Jamesson,  and  taken  his  negotia- 
ble promissory  note  for  the  amount ;  afterwards  supposing  Mandeville  to  be  a 
secret  partner,  he  instituted  this  suit  against  both:  Mandeville  appeared,  and 
pleaded  that  the  note  which  Jamesson  had  given  for  the  same  goods,  was 
given  and  received  for  and  in  discharge  of  the  account  or  bill  for  goods  ; 
and  upon  demurrer,  the  plea  was  adjudged  to  be  a  good  bar.  *«  That  a  note," 
said  Chief  Justice  Marshall,  delivering  the  opinion  of  the  court,  "without  a 
special  contract,  would  not  of  itself  discharge  the  original  cause  of  action,  is  not 
denied.     But  it  is  insisted  that  if,  by  express  agreement,  the  note  is  receiv- 
ed as  payment,  it  satisfies  the  original  contract,  and  the  party  receiving  it 
must  take  his  remedy  on  it.  This  principle  appears  to  be  well  settled.  The 
note  of  one  of  the  parties,  or  of  a  third  person,  may,  by  agreement,  be  re- 
ceived in  payment.     The  doctrine  of  nudum  pactum  does  not  apply  to  such 
a  case  ;  for  a  man  may,  if  such  be  his  will,  discharge  his  debtor  without  any 
consideration.     But  if  it  did  apply,  there  may  be  inducements  to  take  a  note 
from  one  partner  liquidating  and  evidencing  a  claim  on  a  firm,  which  might 
be  a  sufficient  consideration  for  discharging  the  firm  :"  and  the  correctness 
of  this  mode  of  pleading  cannot  be  questioned  since  Sard  v.  Rhodes,  1  M. 
&  W.  153,  and  Sibree  v.  Tripp,  15  Id.  23.     The  intention  to  substitute  the 
individual  for  the  firm  must  be  proved,  and  some  of  the  cases  are  pretty 
strong  in  calling  for  an  express  agreement;  Estate  of  Davis  v.  Desauque,  5 
Wharton,  531  ;  Muldon  v.  Whitlock,  1  Cowen,  290:   but,  upon  sufficient 
evidence,  the  fact  of  the  intention  is  for  the  jury.     Mason  v.  Wickersham, 
4  Watts  &  Sergeant,  100.     The  cases  most  usually  occurring  where  the 
acceptance  of  the  note  of  one  partner  has  been  held  a  discharge  of  the 
others,  are,  where  the  creditor's  entering  into  the  arrangement,  has  caused 
the  funds  of  the  partnership  to  be  entrusted  to  the  one  giving  the  separate 
note,  and  the  business  to  take  such  a  course,  that  the  recurring  to  the  other 
partners  would  be  a  fraud  upon  them :  such  is  the  case  of  Arnold  v.  Camp, 
12  Johnson,  409,  (and  see  James  v.  Hackley,  16  Id.  273,)  and  the  case  of 
Harris  &  Donaldson  v.  Lindsay,  4  Wash,  C.  C.  271,  where  the  subject  of 
accepting  the  responsibility  of  one  partner,  is  discussed  very  ably  by  Judge 
Washington  :  the  hinge  of  the  decision  there  was,  that  the  funds  of  the 
partnership  had  been  given  to  one  partner,  and  the  creditor  had  entered  into 
such  arrangement  with  that  partner,  and   so  amalgamated  that  debt  with 
others,  that  the  retiring  partner  "  could  never  plead  payment  of  the  balance 
due  by  the  partnership,  even  although  a  larger  sum  than  that  due  by  them 
should  have  been  paid  by  the  partner  whose  separate  security  had  beea 
accepted,  out  of  the  very  funds  retained  by  him  for  that  purpose,"  (p.  100.) 


CUMBER     V.     WANE.  333 

See  the  subject  reviewed  in  Wildes  and  others  v.  Fessenden  and  others,  4 
Metcalf,  13.  So  where  an  agent's  note  has  been  given  for  several  jirin- 
cipals,  it  will  require  distinct  evidence  of  an  intention  to  discharge  the  prin- 
cipals, and  take  the  agent's  note  in  lieu,  to  have  that  effect.  Schemerhorn 
and  others  v.  Loines  and  others,  7  Johnson,  311  ;  Insurance  Company  of 
Pennsylvania  v.  Smith,  3  Wharton,  521;  Porters  v.  Talcott  &  Bowers,  1 
Cowen,  359.  And  it  is  reasonable,  that  when  the  transaction,  as  alleged  by 
the  debtor  implies  the  creditor's  having  given  up  some  right  of  action,  or 
abandoned  a  claim  on  any  individual,  without  any  apparent  advantage  to 
himself,  clear  and  full  proof  should  be  made,  or  it  should  appear  that  his 
assertion  of  the  previous  hability  would  partake  of  the  character -of  fraud. 
In  New  York,  it  is  to  be  considered  that  the  acceptance  of  the  note  of  one 
partner,  will  not  and  cannot,  extinguish  the  hability  of  the  others,  although 
the  creditor  expressly  accept  the  note  in  satisfaction ;  Cole  v.  Sackett,  1 
Hill's  N.  Y.  516  ;  Waydell  v.  Luer,  5  Id.  448.  In  the  latter  of  these 
cases,  a  firm  composed  of  Cort,  Underbill,  and  the  defendant,  borrowed  in 
January,  1837,  a  sum  of  money  from  the  plaintiff,  Luer;  in  1838,  the  firm 
was  dissolved,  and  Luer  knowing  of  the  dissolution,  took  the  individual 
notes  of  Cort,  for  a  part  of  the  amount  due  ;  Cort  also  paying  a  sum  of  money 
and  giving,  as  one  witness  believed,  the  note  of  a  third  person  ;  the  whole 
amounting  to  the  sum  due  by  the  firm.  "The  notes  and  cash,"  says 
CowEN,  J.,  who  states  the  case  and  delivers  the  opinion,  "  were  given  in 
settlement  of  the  money  borrowed  ;  and  Luer  gave  up  to  Cort  the  note  of 
the  firm,  which  he  held  for  that  sum.  Cort's  notes  were  renewed  from 
time  to  time,  for  two  years.  They  were  credited  by  Cort's  former  partners, 
in  his  general  account,  as  so  much  assumed  by  him."  The  notes  given  by 
Cort  remaining  unpaid,  Luer  sued  the  firm  on  the  original  loan  ;  and  it  was 
decided,  that  he  was  entitled  to  recover  !  No  question  was  made  of  the 
intention  to  discharge  the  other  partners  ;  and  the  case  was  put  by  Cowex, 
J.,  upon  what  he  declared  to  be  a  settled  principle  of  law,  that  a  promise 
cannot,  under  any  circumstances,  be  a  satisfaction  of  a  debt  antecedently 
due  by  the  debtor  himself,  and  a  fortiori  cannot  discharge  a  debt  due  jointly 
by  himself  and  others.  But  surely  the  retiring  partners'  giving  up  to  the 
continuing  partner  all  control  of  the  assets  of  the  firm  upon  the  faith  of  an 
agreement  by  the  creditor  to  accept  his  sole  liability  in  substitution  of  theirs, 
and  the  partners'  being  induced  by  the  creditor's  agreement,  to  settle  among 
themselves  upon  the  basis  of  such  a  substitution,  constitute  an  abundant 
consideration  for  the  creditor's  agreement.  To  say  that  such  an  arrange- 
ment between  the  creditor  and  the  debtors  is  void,  and  that  the  law  will  not 
allow  it  to  be  vahd,  is  unreasonable  :  and  after  such  an  arrangement  has 
been  made,  and  a  creditor  has  become  a  party  to  such  a  settlement,  has 
given  up  the  notes  of  the  firm,  and,  accepting  the  notes  of  one  of  the  mem- 
bers, has  renewed  them  from  time  to  time  for  two  years,  as  in  Waydell  v. 
Luer,  to  allow  him  to  pursue  the  retired  partners  on  the  original  considera- 
tion, is  wholly  opposed  to  justice  and  convenience. 

3.  The  efl'ect  of  a  debtor's  giving  his  own  negotiable  promissory  note  to 
the  creditor  for  the  full  amount  of  the  original  debt,  is  perhaps  less  clearly 
settled.  There  are  two  classes  of  cases,  which  it  is  necessary  to  distinguish  : 
one,  where  the  note  is  alleged  to  have  been  given  and  accepted  in  satisfac- 
tion and  discharge  of  the  original  cause  of  action  ;  the  other,  where  a  new 


334  SMITHS    LEADING    CASES. 

note  is  given  in'substitution  of  a  former  note.     The  latter  arrangement  is 

undoubtedly  valid,  being  a  mere  exchange  of  securities,  and  it  depends 
entirely  on  the  intention  of  the  parties.     As  to  the  validity  of  the  former 
arrangenaent  in  England,  there  can  be  no  doubt;  Sard  v.  Rhodes,  1  M. 
&  W.   153;  Sibree  v.  Tripp,   15  id.  23;  but  in  this  country  the  cases  '* 
differ. 

In  New  York,  it  may  be  taken  as  conclusive!}'- settled,  that  a  promissory 

note,  or  bill,  of  the  debtor,  though  accepted  by  the  creditor  in  full  satisfac- 
tion, is  not,  and  cannot  in  law  be,  a  discharge  of  the  debt,  so  as  to  bar  the 
original  cause  of  action  :  the  acceptance  of  the  note  will  postpone  the  right 
of  action  till  it  falls  due  ;  Putman  v.  Lewis,  8  Johnson,  389 ;  Frisbie  v. 
Larned,21  Wendell,  450.  452;  Myers  v.  Welles,  5  Hill,  463  ;  (and  see 
Baker  v.  Walker,  14  M.  &  W.  465;  Maillard  v.  The  Duke  of  Argyle,  6 
M.  &  Gr.  40) ;  but,  if  it  be  not  paid,  the  creditor  may  put  it  aside,  and  sue  ■ 
on  the  original  cause  of  action.  In  Hawley  v.  Foote,  19  Wendell,  516,  a 
plea  that  an  order  drawn  by  defendant  on  a  third  person,  was,  by  a:gree- 
raent,  given  and  received  by  plaintiff  in  full  satisfaction,  Avas,  upon  demurrer, 
adjudged,  per  Bronson,  J.,  to  be  bad  in  substance.  In  Frisbie  &  M'Kinney 
V.  Larned  «fc  Corning,  21  id.  450,  the  dicta  of  Cowen,  J.,  are  to  the  same 
effect.  In  Cole  v,  C.  &  E.  Sackett,  1  Hill's  N.  Y.  517,  a  plea  in  assumpsit, 
that  on  accounting  together,  a  certain  balance  was  found  due,  "  of  which 
defendants  paid  a  part,  and  gave  their  promissory  note  to  the  plaintiff  for 
the  residue,  which  the  latter  accepted  in  full  satisfaction  and  discharge,"- on 
demurrer  was  adjudged  bad,  per  Cowen,  J.,  and  that  a  promise  to  receive 
a  promise  in  satisfaction  is  nudum  pactum.  The  amount  of  the  New  York 
cases  is,  that  acceptance  of  a  note  of  the  debtor,  in  payment  and  satisfaction, 
is,  in  law,  but  conditional  payment ;  and,  if  not  paid,  may  be  thrown  out 
of  view.  But  the  case  of  Myers  y.  Welles,  5  Hill,  4.63,  involves  the  New 
York  Courts  in  a  manifest  contradiction,  and  exposes  the  unsoundness  of 
their  position,  as  to  the  debtor's  negotiable  note  not  being  a  discharge,  even 
by  agreement ;  it  was  there  decided,  that  accepting  a  principal  debtor's 
negotiable  note,  payable  at  a  future  time,  was  such  a  giving  of  time  upon 
the  demand,  as  discharged  a  surety  :  "Being  negotiable,"  says  Cowen,  J., 
"they  might  be  used  more  beneficially  than  the  account!  Besides,  they 
operate  to  liquidate  the  plaintiff's  claim.  These  advantages  constituted  a 
sufficient  consideration  for  the  suspension."  This  case  establishes  the  point 
that  these  advantages  are  a  legal  consideration  :  and  if  they  are  sufficient 
to  sustain  an  agreement  to  give  time  ;  they  are  certainly  sufficient  to 
sustain  any  other  lawful  agreement  which  the  parties  choose  to  make  upon 
them. 

On  the  other  hand,  in  the  other  states  of  the  Union,  though  the  validity 
of  such  an  arrangement,  as  would  make  the  note  of  the  debtor  a  bar  to  the 
original  cause  of  action,  has  perhaps  not  been  directly  adjudged,  it  seems  to 
have  been  generally  taken  for  granted.      No  distinction  as  to  the  validity  of 

.  the  transaction  is  recognised  between  a  note  of  the  debtor  for  a  preceding 
cause  of  action,  and  a  note- in  substitution  of  a  former  note,  or  a  note  of  a 
third  person :  but  in  all  these  cases,  everything  depends  on  intention.  It 
is  certain  that  without  an  express  agreement,  the  receipt  of  a  negotiable 
note  of  the  debtor,  is  not  payment  of  a  prior  debt ;  Jaffrey  v.  Cornish,  10 
New  Hampshire,  505  ;  but  by  express  agreement  it  may  be  a  satisfaction 


CUMBER     V.     WANE.  335 

and  bar;  Dougal  v.  Cowles  &  Smith,  5  Day,  511  ;  dicta  of  Marshall,  C, 
J.,  in  Sheehy  v.  Mandeviile  &  Jamesson.  In  Pennsylvania,  indeed,  tiie 
understanding  to  this  effect  is  so  general,  that  it  must  probably  be  considered 
as  settled  ;  Darlington  v.  Gray,  5  Wharton,  487  ;  Weakley  v.  Bell  &  Ster- 
ling, 9  Watts,  273  ;  Hays  v.  Clurg,  4  id.  452.  In  Massachusetts  and 
Maine,  as  presently  stated,  the  law  is  certainly  so. 

The  New  York  decisions  are  to  be  understood  as  applicable  to  the  case, 
where  the  creditor  retains  the  note,  and  can  produce  it  on  trial.  For  it  is 
well  and  generally  settled,  that  if  a  negotiable  note  by  the  debtor  have  been 
given  on  account  of  the  debt,  and  the  creditor  part  with  it  for  a  valuable 
consideration,  he  cannot  sue  on  the  original  cause  of  action,  until  he  has 
taken  up  the  note,  and  if  he  have  not  parted  with  it  for  a  valuable  conside- 
ration he  cannot  recover,  unless,  on  the  trial,  he  produce  and  cancel  the 
note  :  hence,  the  creditor  will  be  defeated,  if  the  debtor  plead  or  prove,  that 
he  had  given  a  negotiable  note,  which  the  plaintiff,  by  having  assigned  it 
for  a  valuable  consideration,  and  not  under  his  control  «/ /Ae  comme?2ce- 
ment  of  the  suit ;  or,  if  it  be  under  the  plaintiff's  control,  and  he  do  not 
produce  and  cancel  it  at  the  trial,  or  prove  that  it  has  been  destroyed  or 
lost ;  Small  v.  Jones,  8  Watts,  265 ;  Hughes  v.  Wheeler,  8  Cowen  77, 
where  the  New  York  cases  are  collected  ;  Dayton  v.  Trull,  23  Wendell, 
345  ;  Hays  v.  M'CIurig,  4  Watts,  452;  Harris  v.  Johnston,  3  Cranch,  311. 
In  Massachusetts  and  Maine,  this  reason  is  carried  so  far,  that  the  debtor's 
giving  his  negotiable  note  for  a  parol  debt,  is  taken  to  be  a  payment  or 
discharge,  "  unless  it  be  proved  not  to  have  been  the  intention  of  the  parties 
to  give  it  that  effect ;"  Johnson  v.  Johnson,  1 1  Massachusetts,  359 ; 
Thatcher  and  others  v.  Dinsmore,  5  id.  299  ;  Varner  v.  the  Inhabitants  of 
Nobleborough,  2  Greenleaf,  121  ;  Butts  v.  Dean,  2  Metcalf,  76.  But  this 
is  admitted  to  be  a  pecuUarity  in  the  law  of  those  states  ;  Wallace  v.  Agry 
et  al.,  4  Mason,  327  ;  Descadilla  et  al.  v.  Harris,  8  Greenleaf,  298  ;  and 
it  only  apphes  to  negotiable  notes  ;  Greenwood  v.  Curtis,  4  Massachusetts, 
,93.  And  acccording  to  the  late  cases  the  presumption  is  merely  one  of 
fact,  founded  on  the  consideration  that  as  it  is  as  convenient,  and  generally 
more  so,  to  the  creditor  to  sue  on  the  note,  there  is  no  reason  to  consider  the 
original  contract  as  continuing  in  force  ;  and  this  presumption  of  fact  may 
be  rebutted  by  evidence  that  the  note  was  not  intended  as  a  payment,  and 
the  fact  that  such  extinguishment  would  deprive  the  party  taking  the  note 
of  a  substantial  benefit,  would  generally  be  sufficient  to  rebut  the  presump- 
tion ;  Curtis  and.  another  v.  Hubbard,  9  Metcalf,  322.  328. 

Where  a  promissory  note  has  been  given,  and  upon  its  falling  due,  a  new 
note  is  given  by  the  debtor,  there  is  no  doubt  this  may  be  a  satisfaction  and 
discharge  of  the  former.  There  is  no  legal  difficulty  in  the  way  ;  for  the 
cause  of  action  is  not  touched  ;  the  transaction  is  only  an  exchange  of 
securities  ;  it  is  therefore  a  mere  affair  of  evidence -and  intention.  In  Hart 
V.  Boiler,  15  Sergeant  &  Rawle,  162,  the  first  count  in  the  declaration  was 
on  a  promissory  note  of  one  Miller,  payable  to  defendant's  order  and  indorsed 
by  defendant,  dated  Oct.  11,  1818,  for  $240,  at  sixty  days,  and  falling  due 
13  Dec.  ;  the  second  count  was  on  a  note  for  the  same  sum,  drawn  and 
endorsed  by  the  same  parties,  dated  14  Dec.  1819  :  the  court  below  told 
the  jury  that  it  was  a  matter  of  law,  that  the  second  note  was  not  a  satis- 
faction and  discharge  of  the  first,  and  that  therefore  the  plaintiff  was  entitled 


336  smith's  leading  cases. 

to  a  verdict  on  the  first  count :  the  judgment  was  reversed  on  this  account : 
and  TiLGHMAN,  C.  J.,  deliyering  the  opinion  of  the  court,  said,  "It  is  a 
general  rule  that  if  one  indebted  to  another  by  note,  gives  another  note  to 
the  same  person  for  the  same  sum,  without  any  new  consideration,  the 
second  note  shall  not  be  deemed  a  satisfaction  of  the  first,  unless  so  intended 
and  accepted  by  the  creditor.  But  if  so.  accepted  it  is  a  satisfaction.  The 
quo  animo  it  was  accepted  is  matter  of  fact,  which  the  court  cannot  take  to 
itself,  and  exclude  the  jury  from  the  decision  of  it.  The  intent  may  often 
be  deduced  from  circumstances,  though  nothing  positive  was  expressed. 
We  are  of  opinion,  therefore,  that  the  court  below  erred  in  assuming  the 
determination  of  this  point  as  matter  of  law.  It  should  have  been  submit- 
ted to  i\\e  jury,  whether  the  second  was  accepted  in  satisfaction."  S.  P. 
Jones  V.  Shawhan,  4  Watts  &  Sergeant,  257.  263  ;  ace.  Musgrove  v.  Gibbs 
1  Dallas,  216  ;  Hacker  and  others  v.  Perkins,  5  Wharton,  95  ;  Porters  v. 
Talcot  &  Bowen,  1  Cowen,  359.  Where  the  transaction  is  the  renewal  of 
notes  in  whole  or  in  part,  at  bank,  the  general  course  of  business  and  under- 
standing of  merchants  rather  implies,  that  the  new  note  is  a  satisfaction  of 
the  old  ;  that  the  transaction  is  a  new  discount  and  a  repayment, of  the  for- 
mer note,  Slaymaker  v.  Gundacker's  Ex'rs,  10  Sergeant  &  Rawle,  75  ; 
Bank  U.  S.  v,  Daniel,  12  Peters,  34  :  "  these  transactions,  of  renewing 
debts  by  new  notes,  are  equivalent  to  paying  the  existing  debt,  and  again 
borrowing  the  money  ;"  Castleman,  &c.  v.  Holmes,  4  J.  J.  Marshall,  1. 
Still,  even  here,  the  decision  of  the  court  is  regulated  exclusively  by  the 
intention  of  the  parties  and  the  justice  of  the  case.  And  where  the  former 
note  is  paid  and  discharged  by  the  new  discount,  it  is  not  to  be  pleaded  as 
accord  and  satisfaction,  but  as  payment  ;  Bank  of  Commonwealth  v. 
Letcher,  3  J.  J.  Marshall,  195  ;  1  Dana,  82. 

The  receipt  of  one  bond  expressly  agreed  to  be  in  discharge  of  a  former 
one,  is  a  good  discharge  :  dicta  in  Morrison  v.  Berkey,  7  Sergeant  & 
Rawle,  238,  and  Weakly  v.  Bell  &  Sterling ;  but  without  evidence  of  such 
agreement  or  intention,  it  will  not  be  a  discharge  ;  Hamilton,  Ex'or  v.  Cal- 
lender's  Ex'ors,  1  Dallas,  420  ;  Gregory  v.  Thomas,  20  Wendell,  17. 

A  doctrine  somewhat  akin  to  this  of  satisfaction  or  exchange  of  one 
security  by  or  for  another, — viz.  that  of  extinguishment  of  one  security  by 
a  higher  one,  by  operation  of  law, — may  be  taken  notice  of.  See  Jones  v. 
Johnson,  3  Watts  &  Sergeant,  276,  where  the  two  prineiples  are  very  ably 
distinguished  by  Gibson,  C.  J. 

The  acceptance  of  a  higher  security  or  obligation  from  the  debtor,  for  the 
payment  of  the  same  dedt,  is  an  extinguishment  of  a  lower  security  or 
obligation  for  that  debt ;  that  is,  a  judgment  on  a  bond  or  other  contract, 
extinguishes  that  bond  or  contract:  Green  v.  Sarmiento,  1  Peters's  C.  C. 
74 ;  Butler  v.  Miller,  1  Denio,  407  ;  and  a  bond  or  other  sealed  instrument 
given  as  an  obligation  for  a  debt,  extinguishes  a  simple  contract  liability  or 
security  for  that  debt;  Curson  v.  Monteiro,  2  Johnson,  308;  Pleasants 
V.  Mcng  et  al.,  1  Dallas,  380.  388  :  because  there  cannot  be  liabilities  on 
both  instruments,  and  a  judgment  and  abend  both  import  an  absolute  liability  ; 
the  lejral  oblijration  of  the  inferior  instrument  must  be  considered  as  at  once 
blotted  out.  In  like  manner,  a  judgment  against  one  joint  debtor  on  a  joint 
cause  of  action,  merges  the  liability  of  all;  Willings  and  Francis  et  al,  v. 
Consequa,  1  Peters's  C.C.  393;  Ward  v.  Johnsons,  31  Massachusetts,  140  ; 


CUMBER    V.    WANE.  337 

Robertson  v.  Smith  and  others,  18  Johnson,  459  ;  Peters  v.  Sanford,  1  Denio, 
224  ;  Penny  v.  Martin  and  others,  4  Johnson's  Chancery,  566 ;  Smith  and 
another  v.  Black,  9  Sergeant  &  Rawle,  142  ;  Lewis  v.  Williams,  6  Wharton, 
264;  Anderson  v.  Levan,  1  Walts  &  Sergeant,  334  ;  King  v.  Hoare,  13 
M.  &  W.  494.  (The  case  of  Sheehy  v.  Mandevillc  and  Jamesson,  6  Cranch, 
253,  has  sometimes  been  considered  as  contra,  and  erroneous  ;  but  that  is 
a  mistake,  occasioned  by  not  properly  understanding  the  point  of  that  case, 
which  turned  almost  entirely  upon  the  effect  of  an  insolvent  -discharge  of 
one  of  the  defendants;  the  view  of  Chief  Justice  Marshall  in  that 
case  appears  to  have  been;  that  a  judgment  against  one  on  his  sole 
contract,  does  not  strictly  extinguish  or  merge  the  liability  of  his  dormant 
partners,  in  the  same  way  that  it  extinguishes  or  merges  the  liability 
appearing  on  the  face  of  the  declaration  ;  it  would  be  a  bar  in  their 
favour,  indeed,  but  only  because  of  the  legal  impossibility  of  enforcing  the 
liability  against  them,  without  reviving  it  against  him  ;  but  that  where  the  one 
against  whom  the  former  judgment  was,  has  been  discharged  under  the  insol- 
vent law,  and  appearing  in  the  second  action,  is  discharged  by  the  judge, 
and  the  proceedings  continue  against  the  newly  discovered  partner  only, 
who  pleads  sev^erally,  here  there  is  no  reason  why  judgment  should  not  be 
entered  against  him,  for  it  does  not  affect  the  other ;  and  that  in  fact,  in  that 
case,  the  judgment  was  entered  against  the  new  defendant  only,  Mandeville, 
is  shown  b}^  the  circumstance,  that,  when  that  judgment  came  up  again  in 
7  Cranch,  208,  it  came  up  b}^  the  name  of  Sheehy  v.  Mandeville.  The 
main  peculiarities  of  this  case,  it  will  be  seen,  are,  that  the  declaration  in  the 
first  suit  set  out  a  sole,  and  not  a  joint  liability,  and  that  in  the  second  suit 
the  former  defendant  av'ailed  himself  of  his  insolvent  discharge,  and  cither 
a  nolle  prosequi  was  entered  against  them,  or  the  proceedings  were  consid- 
ered equivalent  to  that:  had  the  declaration  in  the  first  been  upon  a  joint 
liability,  say  upon  a  parol  contract,  then  probably  the  liability  of  the  other 
partner  would  have  been  slrictl}'-  extinguished  or  merged,  though  he  were 
not  sued,  because  a  judgment  extinguishes  the  whole  liability  declared  on  : 
or  if  the  defendant  in  the  previous  suit  had  not  availed  himself  of  his  insol- 
vent discharge,  but  had  joind  in  the  plea  in  the  new  suit,  then,  perhaps, 
judgment  could  not  have  been  given  for  the  plaintiff;  though  this  latter 
question,  the  Chief  Justice  said,  "  would  have  presented  an  inquiry  of  some 
intricacy."  This  decision,  so  far  from  deserving  the  disrespect  with  which 
some  of  the  later  judges  have  treated  it,  appears  to  be  one  of  the  most 
acute  and  able  judgments  ever  pronounced  byC.  J.  Marshall;  but  whether 
right  or  wrong,  none  of  the  subsequent  decisions  appear  to  have  overruled 
or  shaken  it.)  And  a  bond  accepted  from  one  joint  debtor  for  a  joint  debt, 
discharges  the  joint  liability  previously  existing  upon  a  simple  contract  ; 
because  since  the  bond  is  an  obligation  ^ox  the  same  debt,  the  one  giving  it 
must  be  discharged  from  his  liabihty  on  the  simple  contract,  as  he  cannot  be 
liable  on  both  ;  and  if  one  joint  debtor  is  discharged,  the  other  is  ;  Tom  v. 
Goodrich  and  others,  2  Johnson,  213  ;  Clement  v.  Brush,  3  id.  70;  The 
U.  S.  V.  Astley  et  al,  3  Washington,  C.  C.  508 ;  Anderson  v.  Levan,  1  Id. 
334;   Banorgee  v.  Hovey  et  al.,  5  Massachusetts,  11. 

It  is  said,  no  doubt  correctly,  in  Jones  v.  Johnson,  that  extinguishment 
of  a  lower  security  by  a  higher,  is  an  operation  of  law,  and  that  no  inten- 
tion of  the  parties  can  prevent  it :  <«  An  agreement,  however  explicit,  would 

Vol.  l— 22 


338  smith's  leading   cases. 

not  prevent  a  promissory  note  from  merging  in  a  bond  given  for  the  same 
debtor  ;  for  to  allow  a  debt  to  be,  at  the  same  time,  of  different  degrees,  and 
recoverable  by  a   multiplicity  of  inconsistent   remedies,  would   increase  liti- 
gation," &c.     These  remarks  of  the  Chief  Justice,  it  will  be  observed,  refer 
to  the  case  where  the  bond  is  an  obligation  for  the  same  debt  which  the  sim- 
ple contract  secures  or  evinces,  and  the  strongest  ground  for  this  principle 
is,  that  there  cannot  in   law  exist  two  liabilities  for  one  consideration  :   but 
then  the  evidence  may  show  that  the  bond  is  not  given  as  the  evidence  and 
obligation  of  the  same  debt,  but  was  a  new  and  contingent  obligation    for  a 
new  debt,  (though  for  the  same  sum,  perhaps,)  devised  and  created  to  pro- 
tect and  secure  the  former  debt ;  and  in  such  a  case,  it  would  be  but  collat- 
eral security,  and  no  extinguishment.     In  other  words,  it  is  matter  of  law, 
that  an  absolute  obligation  under  seal  for  the  payment  of  a  debt,  extinguishes 
a    parol  instrument  or  liability    to  pay    the  same :   but    it   is   a    question 
of  fact,  depending  on  the  intention  of  the  parties,  whether  the  deed  is  a  new 
absolute  obligation  for  the  payment  of  the  same  debt,  or  whether  it  is  a 
contingent  and  collateral  instrument,  concocted  and  given  for  the  better 
securing  of  the  parol  debt.     The  presumption  of  fact,  where  the  bond  is 
between  the  same  parties,  and  for  the- same  sum,  is,  that  it  is  an  extinguish- 
ment;  Stewart's  Appeal,  3  Watts  &  Sergeant,  476;  Frisbie  v.  Larned,  21 
Wendell,  450  ;  and  that  appears  to  be  a  general  presumption  in  all  cases  of 
a  higher  security  ;  Butler  v.  Miller,  1   Denio,  407.  413  ;   but  if  it  be  proved 
that  the  intention  was  that  the  former  instrument  should  not  be  extinguished, 
an  extinguishment  will  not  take  place  ;  see  U.  S.  v.  Lymafl,  1  Mason,  482. 
505  ;  and  Yates  v.  Aston,  4  a.  B.  182.  196;  Bell  v.  Banks,  3  M.  &  Gr. 
258.  265.     A  bond  and  warrant  by  one  partner,  with  agreement,  "  when 
paid,  to  be  in  full,"  is  no  extinguishment,  for  the  contrary  intent  is  manifest ; 
Wallace  v.  Fairman,  4  Watts,  378  :   and   an  agreement   under  seal,  whose 
expressed  purpose  is  only  to  secure  the  liquidation  or  discharge  of  the  debt, 
is  no  extinguishment  or  merger  of  the  simple  contract  liability  ;  Charles  v. 
Scott,  1  Sergeant  &  Rawle,  294 ;  Bank  of  Columbia  v.  Patterson's  Adm'r,  7 
Cranch,  299  ;  Baits  v.  Peters  &  Stebbins,  9  Wheaton,  556 ;  Montgomery  v. 
St.  Stephen's  Church,  4  Watts  &  Sergeant,  542.  546;   but  when  the  bond 
of  one  is  taken  at  the  time  of  the  debt  created,  and  of  the  consideration  of  it, 
it  would   require  very  strong  evidence  to  show  that  it  was  not  the  only 
security  entered;  Bond  v.  Aitkin,  6  Watts  &  Sergeant,  165.     in  Bray  v. 
Bates  and  another,  9  Metcalf,  238.  250,  it  was   held  that  a  bottomry  bond 
was  necessarily  an  extinguishment  of  previous  simple  contract  securities. 

If  the  higher  security  be  not  between  the  same  parties,  as,  if  it  be  the 
bond  of  a  third  person,  or  a  judgment  against  a  third  person  ;  U.  S.  v. 
Lyman  ;  Day  &  Penfield  v.  Leal  &  Leal,  14  Johnson,  404  ;  Axers,  Ex'rx 
V.  Musselman,  2  Browne,  11;  Beale  v.  Bank,  5  Watts,  529;  Wolf  v. 
Wyelh,  11  Sergeant  &  Rawle,  149,  or,  be  in  any  way  between  different 
parties,  Davis  v.  Anable  &  Fidlcr,  2  Hill's  N.  Y.  339;  see  Holmes  v.  Bell, 
3  M.  &  Gr.  213  ;  Bell  v.  Banks,  Id,  258  ;  it  cannot  be  an  obligation  for  the 
same  debt,  and  the  doctrine  of  extinguishment  does  not  apply  ;  but  the 
effect  will  be  regulated  by  the  principle  respecting  satisfaction,  considered 
in  a  previous  part  of  this  note.  That  is,  the  presumption  of  fact  is,  that  the 
higher  securitj'  of  a  different  party,  or  for  a  different  sum,  is  intended  not 
to  be  a  satisfaction,  but  only  collateral  security  or  conditional  payment ;  but 


ARMORY     V.  DELAMIRIE.  339 

if  an  agreement  of  the  parties,  that  it  should  be  received  in  full  satisfaction 
and  discharge,  be  proved,  it  will  be  a  discharge:  see  Weakly  v.  Bell  «fc 
Sterling;  Jones  v.  Johnson;  Leas  and  another  v.  James,   10  Sergeant  & 

Rawle,  307. 

H.  B.  W. 


*ARMORY.  V  DELAMIRIE.  [*151] 

HILARY,  8  G.  I.— IX   MIDDLESEX,   CORAM   PRATT,  C.  J. 
[reported  1   STRANGE,  504.] 

The  finder  of  a  jewel  may  maintain  trover  for  a  conversion  thereof  by  a  wrongr.doer. 

A  master  is  answerable  for  the  loss  of  a  customer's  property  entrusted  to  his  servant  in 

the  course  of  his  business  as  a  tradesman. 
Where  a  person  who  lias  wrongfully  converted  property  will  not  produce  it,  it  shall  bo 

presumed,  as  against  him,  to  be  of  the  best  description. 

The  plaintiff,  being  a  chimney-sweeper's  boy,  found  a  jeAvel,and  carried 
it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what  it  was,  and 
delivered  it  into  the  hands  of  the  apprentice,  who,  under  pretence  of 
weighing  it,  took  out  the  stones,  and  calling  to  the  master  to  let  him  know 
it  came  to  three-halfpence,  the  master  offered  the  boy  the  money,  who 
refused  to  take  it,  and  insisted  to  have  the  thing  again ;  whereupon  the 
apprentice  delivered  him  back  the  socket  without  the  stones.  And  now  in 
trover  against  the  master  these  points  were  ruled  : — • 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding  acquire 
an  absolute  property  or  ownership,  yet  he  has  such  a  property  as  will  enable 
him  to  keep  it  against  all  but  the  rightful  owner,  and  consequently  may 
maintain  trover.(ff) 

2.  That  the  action  will  lay  against  the  master,  who  gives  a  credit  to  his 
apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined  to 
prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket  would  be 
worth;  and  the  Chief  Justice  *directed  the  jury,  that  unless  the  p^,  p.^-, 
defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the  finest  L  J 
water,  they  should  presume  the  strongest  against  him,  and  make  the  value 
of  the  best  jewels  the  measure  of  their  damages,  which  they  accordingly  did. 


This  is  the  case  usually  referred  to  ble  the  party  enjoying  it  to  obtain  legal 

for  the  purpose  of  illustrating  that  lead-  remedy  against  a  mere  wrong-doer.     It 

ing  principle   of  law,  that  bare   posses-  would  be  almost  a  waste  of  time  to  enu- 

sion  constitutes  a  sufficient  title  to  ena-  merate  the   modern  decisions  by  which 

(a)  1  Com.  Dig.  Action  upon  trover  (B.)  310. 


340 


SMITHS     LEADING    CASES. 


this  proposition  is  enforced  and  exp]ain- 
ed.  Two  of  the  most  remarkable  are, 
Sutton  V.  Buck,  2  Taunt.  302;  and  Bar- 
ton V.  Hughes,  2  Bing.  173,  where  pro- 
perty liaving  been  lent  to  the  plaintiff' 
under  a  written  agreement,  it  was 
nevertheless  held  that  he  might  main- 
lain  trover  for  it  without  producing  that 
agreement  ;  for,  though,  if  it  had  been 
necessary  to  prove  the  nature  of  his  in- 
terest in  it,  the  rules  of  evidence  would 
have  rendered  the  production  of  the 
writing  indispensable,  still  as  possession 
is  a  sufficient  title  against  a  wrong-doer, 
it  was  sufficient  to  show  his  possession 
without  inquiring  into  the  terms  of  it. 
See  also  Matson  v.  Cook,  4  Bing.  N.  C. 
392. 

Formerly  the  right  of  the  plaintiff  in 
trover  to  the  possession  of  the  goods 
always  came  in  question  under  the  plea 
of  not  guilty :  but-  now,  by  Reg.  Gen. 
Ilil,  1836,  if  the  defendant  deny  the 
plaintiff's  title  to  the  goods,  he  must 
plead  specially.  Since  these  rules,  it 
has  been  held,  in  conformity  with  the 
doctrine  laid  down  in  the  principal  case, 
that  "  the  plea  of  no  property  in  the 
plaintiff,  means  no  property  as  against 
the  defendant."  Per  Parke,  B.,  in  Nich- 
oils  V.  Bastard,  2  C.  M.  &  R.  G62 ;  and 
quaere  as  to  the  case  of  Howell  v.  White, 
1  iM.  &  Rob.  400. 

It  was  in  consequence  of  the  doctrine 
thus  affirmed  in  Armory  v.  Delamirie, 
viz.  that  mere  possession  is  sufficient 
against  a  wrong-doer,  that  it  was  de- 
cided in  Trevilian  v.  Payne,  Salk.  107; 
and  Chambers  v.  Donaldson,  11  East, 
65  ;  in  opposition  to  several  old  author- 
ities, that  a  command  alledged  in  plead- 
ing is  traversable.  In  Trevilian  v. 
I'ayne,  the  action  was  replevin  for  cat- 
tle. Cognizance,  by  tlie  defendant  as 
bailiff  to  J.  S.  Plea  in  bar,  that  defen- 
dant was  not  bailiff'  to  J.  S.,  and  held 
good  on  demurrer  ;  for  though  J.  S.  had 
a  right  to  take  the  cattle,  yet  a  stranger 
v.-itliout  his  authority  could  not.  Ace. 
Robson  v.  Douglas,  Frocni.  .535  ;  George 
V.  Kinch,  7  iMod.  4^*1.  It  was  thought, 
indeed,  long  after  the  decision  in  Tre- 
vilian V.  Payne,  that  in  trespass  quare 
clausum  frcgit,  if  the  defendant  justified 
under  the  cornmnnd  of  A.,  in  whom  he 
alleged  the  iVeeJioid  to  be,  the  plaintifl' 
could  not  in  his  replication  traverse  the 
command  because  that  would  admit  the 
freehold  to  be  in  A. ;  and  if  the  freehold 
were  in  A.  Ihc  plaintiff  ought  not  to 
maintain   iiis  action.     But   tliis  distinc* 


tion  is  now  completely  exploded,  for  in 
Chambers  v.  Donaldson,  11  East,  65,  the 
defendants,  to  an  action  of  trespass  quare 
clausum  fregit,  pleaded  that  the  locus 
in  quo  was  the  property  of  E.  B.  Port- 
man,  Esq.,  and  that  they  by  his  command 
broke  and  entered  the  same.  The  plain- 
tiff traversed  the  command,  and  on  de- 
murrer the  replication  was  held  good 
upon  the  expressground  thai  the  defend- 
ant, if  he  had  not  the  command  of  Port- 
man,  was  a  wrong-doer,  and  that  as 
against  a  wrong-doer  the  plaintiff's 
possession,  even  supposing  him  to  have 
no  title,  would  be  sufficient  to  maintain 
the  action.  See  Heath  v.  Milward,  2 
Bmg.  N.  C.  98. 

On  the  same  principle  rests  the  well- 
known  rule  in  actions  of  ejectment,  viz, 
that  the  plaintiff  must  recover  by  the 
strength  of  his  own  title,  not  the  weak- 
ness of  his  anlagonisCs ;  for  no  one 
can  recover  in  ejectment,  who  would 
not  be  entitled  to  enter  without  bringing 
ejectment;  and  any  person  entering  on 
the  possession  of  the  tenant,  unless  he 
liave  a  better  title,  is  a  wrong-doer. 

In  the  late  case  of  Dobree  v.  Napier, 
2  Bing.  iV.  C.  781,  a  distinction  was  en- 
grailed *upon  the  general  ruler^.rq-. 
that  a  command  is  traversable.  '-  ■' 
That  was  an  action  of  trespass,  for  seiz- 
ing a  steam-vessel.  The  defendant 
pleaded  a  seizure  of  the  vessel  as  prize, 
by  the  command  of  the  Queen  of  Portu- 
gal. Tiie  plaintiff  replied  facts  showing 
that  the  defendant  was  prohibited  from 
entering  the  service  of  the  Queen  of 
Portugal,  by  the  provisions  of  the  For- 
eign Enlistment  Act.  Upon  demurrer, 
judgment  was  given  for  the  defendant. 
"  The  only  ground,"  said  Tindal,  C.  J., 
"on  which  the  authority  of  the  servant 
is  traversable  at  all  in  an  action  of  tres- 
pass, is  to  protect  the  person  or  property 
of  a  party  from  the  officious  or  wanton 
interference  of  a  stranger,  where  the 
principal  might  have  been  willing  to 
waive  his  rights.  It  is  obvious,  that  the 
full  benefit  of  this  principle  is  secured 
to  the  plaintiffs,  by  allowing  a  traverse 
of  the  authority,  de  facto,  without  per- 
mitting theiii  to  impeach  it  by  a  legal 
objection  to  its  validity  in  another  and 
foreign  country." 

As  to  the  third  point  decided  in  this 
case,  it  is  an  illustration  of  that  favour- 
ite maxim  of  llie  law,  omnia  presumun- 
tur  contra  spoliatorem;  which  signifies, 
that  if  a  man,  by  his  own  tortious  act, 
withhold    the   evidence  by   which   the 


ARMORY     V.     DELAMIRIE. 


341 


nature  of  his  case  vvnuld  bo  manifested, 
every  prosuiiiption  to  his  disadvantage 
will  bo  adopted.  Tluis,  if  a  man  with- 
hold an  ngreement,  under  which  he  is 
charg-eable,  it  is  presumed  to  have  been 
properly  stamped.  Crisp  v.  Anderson, 
1  Stark.  35.  So,  too,  if  goods  are  sold 
without  any  express  stipulation  as  to 
their  price,  if  the  vendor  refuse  to  give 
any  express  evidence  of  their  value, 
they  are  presumed  lo  be  Worth  only  ihe 
lowest  price  for  which  goods  of  that  de- 
cription  usually  sell;  unless  the  vendee 
himself  be  shown  to  have  suppressed 
the  means  of  ascertaining  the  truth,  for 
then  a  contrary  presumption  arises,  and 
they  are  taken  to  be  of  tiie  very  best 
description.  Clunnes  v.  Pezzy,  1  Camp. 
8,  et  notas.  In  a  recent  case,  Braith- 
vvaite  v.  Coleman,  1  Harrison,  223,  the 
Court  of  King's  Bench  diflered  on  the 
application  of  this  principle ;  it  was  an 
action  by  the  indorsee  against  the  draw- 
er, and  the  only  evidence  of  notice  of 


dishonour  was  the  following  statement 
made  by  the  defendant: — "I  have  seve- 
ral good  defences  to  the  action  ;  in  the 
first"  place,  the  letter"  (containing  the 
notice  of  dishonour)  "  was  not  sent  to 
me  in  time."  A  notice  to  produce  the 
letter  had  been  given,  but  it  was  not 
produced;  Lord  Denman,  (/.  J.,  thought, 
that,  as  tlie  defendant  withbeld  the  let- 
ter, the  jury  were  justified  in  assuming, 
as  tliey  actually  had  done,  that  if  pro- 
duced it  would  appear  to  have  been  in 
time.  But  Litlledale,  Patteson,  and 
Coleridge,  JJ.,  thought,  that  the  latter 
might  have  been  dated  on  the  proper 
day,  but  sent  by  private  liand,  or  in 
some  way  in  which  it  would  not  have 
arrived  in  proper  time;  and  that  the 
defendant  would  not  be  bound  to  pro- 
duce a  letter,  which,  on  the  face  of  it, 
might  make  against  him,  and  which  he 
might  not  have  evidence  to  explain  ; 
and  a  rule  for  a  new  trial  was  made  ab- 
solute. 


To  determine  what  is  a  sufficient  property  or  possession  in  the  plaintiff 
to  support  trover  or  replevin,  has  always  been  one  of  the  most  difficult 
questions  in  law.  It  has  been  rendered  more  uncertain  by  the  fact,  that 
the  test  of  special  pleading  has  not,  in  the  case  of  trover,  been  applied  to  it ; 
since  pleas  to  a  declaration  in  trover,  directly  or  indirectly,  contesting  the 
property  of  the  plaintiff,  together  with  all  others,  which  go  to  defeat  the 
original  and  essential  grounds  on  which  the  suit  is  brought,  are  bad  on 
special  demurrer,  as  amounting  to  the  general  issue.  Hurst  v.  Cook,  19 
W.  464.  It  would  seem  at  first  sight,  that  as  replevin,  in  almost  all  cases, 
relies  upon  a  taking  by  the  defendant,  whether  the  declaration  be  framed  in 
the  detinet  or  delinuit,  and  merely  invokes  the  aid  of  the  law  to  reinstate 
the  plaintiff  in  the  possession  of  goods  from  which  he  has  been  dispossessed  ; 
so  the  party  against  whom  the  action  is  brought,  should  be  held  to  proving 
a  title  to  the  goods  in  himself,  and  not  merely  to  showing  that  such  title  is 
out  of  the  plaintiff.  It  would  seem,  however,  that  a  denial  of  property  in 
the  plaintiff  is  sufficient,  unless  on  special  demurrer,  to  defeat  an  action  of 
trover,  and  will  in  all  cases,  be  a  good  defence  in  replevin.  Both  trover 
and  replevin,  rest  therefore,  upon  the  same  footing  as  to  this  question,  and 
to  sustain  either  of  them  requires  proof  of  property.  But  the  difference  in 
this  respect  between  these  actions  and  trespass,  Avhere  a  mere  possession  on 
the  part  of  the  plaintiff  has  always  been  held  prima  facie  sufficient,  is  rather 
nominal  than  real.  Rogers  v.  Arnold,  13  Wen.  37.  Although  there  must 
be  proof  of  property,  yet  the  merest  and  most  naked  possession  on  the  part  of 
the  plaintiff,  will  make  out  a  sufficient  measure  of  properly  in  him,  as 
against  the  defendant,  having  at  the  time  whenthe  cause  of  action  accrued, 
neither  property  nor  right  of  possession.   RoUe's  Abridgment,  title  replevin, 


342  smith's  leading   cases, 

A.  &  C.  Nor  will  evidence  by  the  latter  that  the  general  right  of  property 
is  in  another,  rebut  the  inference  to  be  drawn  from  the  mere  possession, 
already  referred  to.  In  Armory  v.  Delamirie,  it  was  apparent  from  the 
evidence,  that  the  real  property  was  in  a  third  party  ;  but  as  this  property 
was  not  connected  by  authority  or  transfer  with  the  defendant,  judgment 
was  given  against  him  ;  and  in  Rogers  v.  Arnold,  the  same  law  was  held 
applicable  to  replevin.  It  is  true  that  the  plea  of  property  in  a  third  person, 
has  frequently  been  said  to  be  a  good  plea  in  replevin,  and  has  been  put  in 
contradistinction  to  a  plea  of  property  in  the  defendant,  which  also  has  always 
been  treated  as  good  ;  and  there  can  be  no  doubt,  that  by  success  in  either, 
the  defendant  will  be  entitled  to  a  return.  Q,uincy  v.  Hall,  1  Pick.  357. 
But  in  truth,  both  these  modes  of  pleading  are  the  same.  In  both  cases  the 
gist  of  the  pleading  is  a  traverse  of  the  property  of  the  plaintiff,  without 
which  the  affirmative  allegation  of  properly,  whether  in  the  defendant  or  a 
stranger,  would  be  bad.  This  allegation  is  mere  matter  of  inducement,  and 
a  replication  traversing  it,  and  tendering  issue  demurable.  Prosser  v. 
Woodward,  21  Wendell,  208.  The  plaintiff  should  reply,  reaffirming  his 
property,  and  concluding  to  the  country.  Chambers  v.  Hunt,  3  Harrison 
N.J.  R.  339.  It  necessarily  follows,  that  if  on  such  an  issue,  the  jury 
merely  find  that  the  properly  is  not  in  the  defendant,  or  that  it  is  not  in  a 
stranger,  in  whom  it  had  been  asserted  to  be  in  the  plea,  the  verdict  v.-ill  be 
immaterial,  and  a  judgment  on  it  erroneous.  Bemers  v.  Beck,  3  Wen- 
dell, 667. 

Thus  the  affirmative  matter  of  the  pleas  in  replevin,  which  are  commonly 
described  as  pleas  of  properly,  in  the  defendant  or  a  stranger,  is  mere 
inducement,  and  their  real  character  and  effect,  is  that  of  a  broad  traverse  of 
the  property  of  the  plaintiff,  which  is  averred  in  the  declaration.  Of  course, 
if  the  plaintiff  show  any  property  in  himself,  either  general  or  special,  and 
whether  of  unlimited  duration,  or  merely  for  the  time  being,  it  will  support, 
on  his  part,  the  issue  raised  by  this  traverse  ;  and  it  would  seem  that  in 
replevin,  as  in  trover,  evidence  of  an  immediate  right  to  possession  as  against 
the  defendant,  will  prove  a  sufficient  right  of  property  in  the  plaintiff,  to 
maintain  the  averment  in  his  declaration.  Rogers  v.  Arnold.  Agreeably 
to  this  vie"\v  of  the  subject,  it  appears  that  under  an  issue  found  on  the 
plea,  commonly  known  as  a  plea  of  property  in  a  third  person,  evidence 
cannot  be  received  to  prove  property  in  him,  unless  for  the  purpose  of 
thence  deducing  title  or  authority  to  the  defendant.  Such  is  undoubtedly 
the  law  in  trover;  Duncan  v.  Spear,  11  Wend.  54;  and  such,  notwith- 
standing the  remarks  of  Covven,  J.,  in  Prosser  v.  Woodward,  21  Wend. 
210,  would  seem  to  be  the  law  in  replevin.  The  property  pleaded  in  the 
action  of  replevin,  whether,  as  in  the  defendant  or  a  third  person,  must, 
according  to  the  opinion  of  Nelson,  C.  J.,  as  delivered  in  Rogers  v.  Arnold, 
be  such  as  would  defeat  an  action  of  trespass  or  trover.  It  was  further 
declared  by  the  same  authority,  that  the  cases  reported  13  Johnson,  284,  11 
id.  132,  "expressly  decide,  that  in  the  action  of  trespass,  as  the  possession 
of  a  chattel  is  prima  facie  evidence  of  right,  so  a  mere  stranger  could  not 
deprive  the  party  of  that  possession,  without  showing  some  authority  or 
rio-ht  from  the  true  owner,  to  justify  the  taking.  This  sound  and  incontro- 
vertible principle  has  been  extended  to  trover,  and  we  think  it  applies  to 
replevin." 


\ 


ARMORY     V,     1)  E  L  A  M  I  R  I  E.  343 

These  general  principles,  with  regard  to  the  amount  of  interest  in  the 
property  which  must  be  possessed  by  the  plainiiif,  in  order  to  sustain  his 
action  have  been  fully  admitted  by  the  courts  of  New  York,  as  governing 
the  action  of  trover.  As  has  already  been  stated,  it  was  held  in  Duncan  v. 
Spear,  11  Wendell,  54,  that  mere  evidence  of  prior  possession  in  the 
plaintiff  was  sufficient  to  put  the  defendant  on  his  defence  ;  and  that  evidence 
of  property  in  a  third  person  will  not  amount  to  a  defence,  unless  such 
property  be  connected  by  authority  or  transfer  with  the  defendant.  The 
same  principles  had  been  previously  held  in  that  state,  inDaniells  v.  Brown, 
11  Wend.  57,  and  in  M'Laughlin  v.  Waite,  9  Cowen,  670,  where  the 
doctrine  of  Armory  v.  Delarairie  was  recognized  as  law.  It  must  however, 
be  observed,  that  in  the  previous  case  of  Dillenback  v.  Jerome,  7  Cowen, 
294,  the  language  of  the  court  seemed  to  go  upon  the  idea,  that  nothing  short 
of  a  definite  and  actual  interest  in  the  chattel  for  which  the  action  was  brought, 
would  constitute  a  sufficient  special  property  to  support  trover  or  replevin. 

The  general  doctrine  involved  in  these  cases  was  minutely  examined 
by  Richardson,  C.  J.,  in  the  case  of  Poole  v.  Symonds,  1  New  Hampshire, 
289  ;  who  there  determined  that  a  special  property  in  goods  might  in  some 
cases  be  founded  upon  mere  possession  ;  and  that  this  result  would  follow, 
where  the  possession  was  such  as  to  render  the  party  liable  for  the  safe- 
keeping and  re-delivery  of  that  which  he  held.  In  opposition,  therefore,  to 
the  cases  in  Massachusetts,  hereafter  cited,  an  action  of  trover  was  sustained, 
which  had  been  brought  by  a  mere  receiptor  of  goods  from  the  sheriff,  to 
recover  damao-es  for  their  conversion.  The  law  was  again  held  the  same 
way,  in  the  subsequent  decision  of  Pinkham  v.  Gear,  J?  New  Hampshire, 
485;  and  in  both  cases  the  right  of  a  finder  to  sue  in  this  form  of  aclioa 
was  asserted  on  the  authority  of  the  principal  case. 

In  Thayer  v.  Hutchinson,  13  Weston,  507,  the  Supreme  Court  of 
Vermont,  after  an  able  review  of  principles  and  cases  bearing  on  this  sub- 
ject, decided  in  accordance  with  Armory  v.  Delamirie,  and  agreeably  to  the 
more  recent  decisions  in  New  York.  They  held  that  the  lawful  possession 
of  chattels  whether  accompanied  by  special  property  or  not,  was  sufficient  to 
support  an  action  of  trover  or  trespass  against  a  wrong-doer.  This  view  of  the 
case  would  appear  to  be  placed  beyond  all  possibility  of  doubt,  as  far  as  foreiga 
authority  can  settle  it,  by  the  dicta  of  the  English  judges  upon  this  ques- 
tion, which  came  incidentally  before  them  in  delivering  their  opinions  in 
the  House  of  Lords,  in  the  case  of  Giles  v.  Grover,  6  Bligh,  277.  They 
all  expressed  the  opinion,  that  mere  possession  was  sufficient  to  maintain 
trover  as  against  a  wrong-doer.  This  construction  of  the  law  entirely 
coincides  with  that  which  has  prevailed  in  ejectment,  where  it  has  lono- 
been  determined,  that  although  the  plaintiff  must  Tecover  upon  the  strength 
of  his  title,  yet  that  any  prior  possession  is  sufficient  against  a  subsequent 
possession  acquired  by  wrong.  The  grounds  taken  in  New  Hampshire,  in 
Poole  V.  Symonds,  as  to  trover,  was  held  in  the  case  of  Chambers  v.  Hunt, 
above  cited,  with  regard  to  replevin  ;  and  it  was  determined,  that  although  a 
mere  possession  was  not  enough,  yet  that  either  a  right  of  property  or  a  right 
of  possession,  however  temporary,  would  answer.  This  opinion  is  sup- 
ported and  illustrated,  by  the  case  of  Smith  v.  Williamson,  1  Harris  & 
Johnson,  187,  in  which  it  was  decided  that  the  right  of  possession  of  a 
guardian,  in  the  chattels  of  his  ward,  would  authorize  his  bringing  replevin  ; 


344  smith's   leading   cases. 

and  by  the  opinion  delivered  by  Gibson,  J.,  in  Harris  v.  Smith,  3  Sergeant 
&  Rawle,  20,  who  held  an  instruction  to  the  jury  correct,  in  which  they 
were  told  that  a  mere  possession  such  as  that  of  a  servant,  although  lawful, 
would  not  sustain  replevin  ;  but  that  if  he  received  the  goods  as  bailee,  and 
under  a  special  responsibility,  he  would  he  entitled  to  recover  in  that  form 
of  action.  The  possessory  title  arising  under  a  mere  bailment,  was  again 
held  to  entitle  the  holder  to  bring  replevin  by  the  Supreme  Court  of  Penn- 
sylvania, in  the  subsequent  case  of  Mead  v.  Kilday,  2  Watts,  110. 

The  courts  of  Penns3dvania  would  seem  never  to  have  directly  decided 
the  question,  whether  a  mere  naked  possession,  not  obtained  by  tort,  nor 
adverse  to  the  rights  of  the  true  owner,  be  sufficient  to  maintain  an 
action  of  trover.  There  are,  however,  several  cases  in  which  the  dicta 
of  the  judges  would  appear  to  lean  the  other  way,  and  to  support  the 
idea  that  the  plaintiff  must  prove  property,  as  distinct  from  possession. 
Thus  in  delivering  the  opinion  of  the  court  in  Grubb  v.  Guilford,  4  Watts, 
223,  Rogers,  J.,  recognised  as  law,  the  principle,  that  the  defendant  might 
defeat  the  plaintiff  in  trover,  by  showing  title  in  himself  or  in  a  third  person  ; 
and  the  same  doctrine  was  asserted  in  Sylvester  v.  Girard,  4  Rawle,  185, 
although  the  point  decided  was  merely  that  the  possession,  acquired  by  a 
delivery  of  stolen  property  made  by  the  thief,  was  not  sufficient  to  enable 
the  bailee,  after  the  discovery  of  the  theft,  to  recover  in  trover  against  the 
defendant,  who  claimed  to  retain  for  the  true  owner. 

There  will,  however,  be  found  in  the  opinions  delivered  in  giving  judg- 
ment in  the  case  of  Buckley  v.  Hand}^  2  JVIiles,  455,  a  full  recognition  of 
the  doctrine,  that  the  plea  of  property  in  replevin,  is  always  in  effect  a 
traverse  of  the  averment  of  property  in  the  declaration,  and  that  whether  in 
trover  or  replevin,  evidence  of  mere  prior  possession,  will  be  sufficient  to 
support  the  action  against  a  wrong-doer.  There  may,  notwithstanding,  be 
doubts  as  to  the  soundness  of  the  doctrine  advanced  in  the  same  opinion, 
that  the  defendant,  to  support  on  his  part  the  issue  joined  on  such  a  traverse, 
cannot  give  in  evidence  to  disprove  the  title  set  up  in  himself  by  the  plain- 
tiff, acts  done  by  him,  which  have  had  the  efit-ct  of  transferring  to  the 
defendant,  such  a  general  or  special  property  under  that  title,  as  to  give  him 
the  right  to  the  possession  of  the  goods  at  the  lime  of  action  brought.  Such 
evidence  does  not  seem  to  be  in  confession  and  avoidance  of  the  plaintifl"'s 
property,  but  on  the  contrary,  to  be  as  directly  in  denial  of  it,  as  any  that 
could  be  brought  forward.  A  similar  point  arose  in  White  v.  Teal,  12  Ad. 
&  El.  106,  where  it  was  determined  in  accordance  with  Owen  v.  Knight, 
4  Bing.  N.  C.  54,  that  evidence  of  a  lien  on  the  part  of  the  defendant,  con- 
tradicted the  right  of  possession  in  the  plaintiff  as  asserted  in  the  induce- 
ment of  the  declaration,  which  was  in  trover,  and  therefore  was  not 
admissible  under  the  rules  of  Hilary  Term,  on  a  plea  of  not  guilty  :  and  in 
Lane  v.  Tewson,  reported  ibid,  in  note,  it  was  further  held  that  in  detinue 
for  chattels,  a  lien  might  be  set  up  by  the  defendant  in  support  of  a  plea 
traversing  the  property  of  the  plaintilF.  But  the  authority  of  this  latter 
decision  was  denied,  and  the  point  determined  the  other  way  by  the  Court 
of  Exchequer,  in  Mason  v.  Parnell,  .12  M.  &  W.  073. 

In  Massachusetts,  it  has,  however,  been  determined,  that  mere  posses- 
sion, although  rightly  obtained,  is  not  sufficient  to  maintain  trover  or 
replevin,  even  as  against  a  wrong-doer.     It  is  true,  that  in  Waterman  v. 


ARMORY     V.     DELAMIRIE.  345 

Robinson,  5  Massachusetts,  301,  the  court,  while  deciding  that  the  plaintifT 
could  not  support  replevin  on  a  mere  previous  possession  of  goods,  against 
the  defendant  who  had  wrongfully  violated  that  possession  and  removed  the 
goods,  said  that  an  action  of  trover  would  have  been  valid,  yet  in  the  sub- 
sequent case  of  Ludden  v.  Leavitt,  9  Massachusetts,  304,  they  held  that  to 
support  trover,  there  must  be  a  general  or  special  property,  and  conse- 
quently that  it  could  not  be  brought  by  a  mere  bailee  for  an  uncertain  time, 
who  had  simply  received  the  goods  to  keep  safely.  In  Warren  v.  Leland, 
9  Massachusetts,  200,  they  applied  precisely  the  same  law  to  an  action  of 
replevin,  which  was  treated  as  being  on  the  same  footing  as  trover,  with 
regard  to  the  evidence  of  property  in  the  plaintiiF  necessary  for  its  support. 
And  in  the  recent  case  of  Whitewcll  v.  Wells,  24  Pick.  30,  it  was  again 
said,  that  replevin  could  not  be  supported  on  a  bare  possession,  nor  by  a 
mere  bailee. 

It  is  every  where  admitted,  that  a  special  property,  such  as  is  possessed 
by  a  party  holding  chattels  on  pawn  or  by  right  of  lien,  is  sufficient  to 
support  an  action  of  trover.  Ingersoll  v.  Van  Bokkelin,  9  Cowen,  680. 
Nor  is  this  right  inconsistent" with  a  co-existing  right  to  maintain  this 
action,  or  trespass,  for  the  same  injury  on  the  part  of  the  holder  of  the 
general  property  in  the  same  chattels;  Drake  v.  Redin^ton,  9  New  Ilamp- 
shire,  243  ;  Tucker  v.  Gordon  9  Vermont,  330  ;  although,  of  course,  a 
recovery  by  one  will  be  a  bar,  to  any  action  by  the  other.  Smith  v.  James, 
7  Cowen,  329.  It  would  seem,  however,  that  if  the  general  owner  have 
never  had  possession,  or  the  right  of  possession,  as  where  the  existence  of 
the  special  property  in  the  lien  holder,  has  preceded  a  sale  of  the  general 
property  to  him,  which  has  not  been  attended  by  delivery,  no  action  of  trover 
brought  by  him,  everi  against  a  third  party,  can  be  supported.  Bush  v. 
Lyon,  9  Cowen,  57.  In  Mathers  v.  Trinity  Church,  3  Sergeant  &  Rawle, 
512,  C.  J.  TiLGHiMAN  laid  down  the  converse  of  this  proposition  as  law,  and 
asserted  that  although  the  existence  of  a  constructive  possession,  or  of  a 
mere  right  of  possession,  might,  when  accompanied  by  general  property, 
be  sufficient  to  maintain  an  action  of 'trover,  yet  that  where  the  property  was 
merely  special,  the  possession  must  be  actual. 

On  tliis  ground,  the  decision,  though  not  the  language  of  the  court,  in 
Dillenback  v.  Jerome,  already  cited,  may  perhaps  be  reconciled  with  the 
subsequent  case  of  Duncan  v.  Spear,  as  reported  in  11  Wendell;  since  the 
plaintiff  in  the  former  had  never  actually  obtained  possession  of  the  goods, 
having  merely  become  responsible  that  they  should  be  forthcoming. 

But  although  the  right  of  a  party,  having  either  a  general  or  special  pro- 
perty in  chattels,  to  bring  an  action  of  trover,  would  seem  undoubted,  yet 
it  must  be  remembered,  that  such  is  the  case  only  because  both  these 
species  of  property  in  the  same  chattel  may  exist,  as  present  and  vested 
interests,  in  diderent  persons,  at  the  same  time.  Such  is  the  case  when 
property  is  held  by  a  factor,  under  a  right  of  lien,  or  by  an  agent  for  the 
purpose  of  application  to  some  particular  object ;  since,  in  both  these  cases, 
the  tide  of  the  general  owner,  and  the  qualified  title  of  the  bailee,  co-exist 
at  the  same  period  of  time  ;  and,  if  proved,  in  either,  it  will  support  the 
averment  of  a  present  property  in  the  plaintifT,  as  made  in  ihe  declaration. 
But  where,  instead  of  a  bailment,  a  grant  in  the  nature  of  a  lease,  or  hiring 
for  a  definite  period  of  time,  is  made  by  the  owner,  there  the  grantee  takes 


346  smith's   leading   cases. 

for  that  period,  the  absolute  property  in  the  chattel  granted  ;  and  although 
a  reversionary  interest,  equally  absolute  exists  in  the  owner,  yet  his  present 
property  is  entirely  divested.  Under  this  view  of  the  law  it  was  decided 
in  Vincent  v.  Cornell,  13  Pick.  296,  that  where  the  owner  of  a  chattel  has 
hired  it  for  a  definite  period,  he  cannot  maintain  trover,  even  for  the  conver- 
sion of  the  whole  chattel,  by  a  sale,  as  the  property  of  the  person,  by  whom 
it  has  been  hired.  These  principles  will  equally  hold  good  when  the  action 
is  brought  in  trespass.  Fitler  v.  Shotwell,  7  Watts  &  Sergeant,  14. 
Corfield  V.  Coryell,  4  W.  C.  C.  R.,  387  ;  Morggridge  v.  Evelith,  9  Metcalf, 
233.  The  same  doctrine  has 'also  been  applied  in  Massachusetts,  where  a 
temporary,  but  absolute  right  of  property,  existing  in  the  defendant,  or  a 
third  person,  the  plaintiff  has  brought  replevin,  to  prevent  the  destruction 
or  injury  of  a  reversionary  interest  in  himself,  by  a  sale  or  transfer,  pro- 
fessing to  pass  the  whole  title  in  the  chattel;  and  it  has  been  determined, 
that  on  a  traverse  of  the  property  of  plaintiff,  the  issue  must  under  these 
circumstances,  be  found  for  tlie  defendant.  Wheeler  v.  Train,  3  Pick. 
258;  Collins  v.  Evans,  15  Pick.  63  ;  S.  P.  4  Wash.  C.  C.  Reports,  387. 
These  principles  equally  hold  good  where  the  action  is  brought  in  trespass. 
But  although  it  seems  firmly  settled,  that  in  such  cases,  neither  trover  nor 
replevin  will  lie,  yerit  appears  equally  certain,  that  an  action  of  trespass  on 
the  case,  may  be  sustained  by  the  plaintiff,  for  the  injury  done  to  his  rever- 
sionary interest,  by  a  removal  and  sale  of  the  whole  chattel;  Ayer  v. 
Barllett,  9  Pick.  156.  And  when  the  tortious  act  complained  of,  is  of  such 
a  nature  as  to  determine  the  right  of  the  lessee,  as  in  the  case  of  the  sever- 
ance and  sale  of  fixtures,  trover  may  be  at  once  maintained  by  the  lessor. 
Farrant  v.  Thompson,  2  Dowl.  &  Ry.  1. 

Trover  or  replevin  may  be  maintained  for  things  which  have  formed  part 
of  the  realty,  if,  after  severance  from  the  freehold,  they  be  subsequently 
carried  away,  or  actually  converted  to  the  defendant's  use.  But  in  order  to 
maintain  these  actions  in  this  case,  it  is  necessary  that  the  plaintifi' should 
have  actual  or  constructive  possession  of  the  land,  and  he  cannot  recover, 
if  the  series  of  acts,  in  which  the  severance  and  conversion  have  occurred, 
have  been  also  sufficient  to  create  an  adverse  possession  in  the  defendant, 
although  it  has  lasted  for  a  period  short  of  twenty-one  j^ears.  To  hold  the 
law  otherwise,  would  be  to  bring  the  title  to  land  in  dispute  in  a  transitory 
action,  when  the  plaintiff  has  not  previousl)^  adopted  proper  means  for 
reducing  his  title  to  possession  i  for  if  the  general  right  to  the  land,  unac- 
companied by  possession,  were  to  be  held  as  giving,  first  a  general  property 
in  whatever  might  be  severed  from  the  freehold,  and  then  a  consequent  con- 
structive possession,  the  only  question  in  an  action  of  trover  or  replevin, 
brought  against  an  actual  possessor,  would  be  as  to  the  part)^  in  whom  the 
title  to  the  realty  lay.  If  however,  the  land  be  not  in  the  possession  of  the 
defendant,  but  unoccupied,  then  evidence  of  title  may  be  received  on  the 
part  of  the  plaintiff;  since,  in  that  case,  the  title  would  draw  to  it  a  con- 
structive possession.  On  the  whole,  it  would  seem,  that  the  right  to 
maintain  these  actions,  for  things  severed  from  the  freehold,  must  reside  in 
the  party  who  has  the  possession  of  land,  whether  actual  or  constructive, 
with  this  exception,  that  where  there  is  an  actual  adverse  possession  in  the 
defendant,  a  constructive  possession  cannot  exist  in  the  plaintiff,  and,  conse- 
quently, that  the  latter  is  not  entitled  to  recover  ;  Mather  v.  Trinity  Church, 


ARMORY    V.     DELAMIRIE.  347 

3  Sergeant  &  Rawle,  509;  Brown  v.  Caldwell,  10  do.  114;  Elliott  v. 
PoweH,  10  Watts,  454. 

It  follows,  however,  from  the  case  last  cited,  and  the  general  principles 
already  stated,  that  if  the  party  having  the  title  to  the  land,  resort  to  the 
appropriate  means  provided  by  the  law  for  reducing  his  title  to  possession, 
and  either  bring  ejectment,  or  enter  with  the  intent  of  occupying  the  land, 
he  may  not  only  plead  his  title  as  a  defence,  if  sued  in  a  transitory  action 
for  the  mere  act  of  entry,  but  may  take  advantage  of  it,  either  as  a  ground 
of  defence  or  recovery,  in  any  subsequent  action  of  trover  or  replevin, 
brought  by  or  against  him,  for  chattels  severed  from  the  really. 

Neither  trover  nor  replevin  can  be  supported  for  a  chose  in  action,  such, 
for  instance,  as  a  share  of  stock,  Sewall  v.  Lancaster  Bank,  17  Sergeant  & 
Rawle,  285  ;  although  they  may  be  well  brought  for  the  paper  or  certificate, 
under,  or  by  which,  the  existence  or  character  of  the  chose  in  action  is 
evidenced.     Pierce  v.  Vandyke,  6  Hill,  613. 

In  such  an  action,  the  amount  of  the  plaintiff's  recovery  is,  however,  not 
for  the  mere  value  of  the  paper  or  obligation,  when  considered  with  refer- 
ence to  the  materials,  or  labour  employed  in  or  upon  it,  but  for  the  value  of 
the  claim  or  chose  in  action,  of  which  it  is  the  evidence.  Although  there- 
fore, the  action  be  one  of  tort,  anything  tending  to  reduce  the  debt,  as  prov- 
ing a  set-off;  or  a  failure  of  consideration,  may  be  received  in  evidence. 
Romig  V.  Romig,  2  Rawle,  241.  The  adoption  of  this  doctrine,  evidently 
makes  the  chattel  nominally  sued  for,  a  mere  secondary  object,  and  that  of 
which  it  is  the  evidence,  the  actual  object  of  the  suit.  Accordingly,  in 
Matthews  v.  Sherwell,  2  Taunton,  440,  it  was  held  by  the  C.  B.  that  an 
action  of  trover  could  not  be  maintained,  by  the  assignees  of  a  bankrupt,  to 
recover  damages  for  a  check  of  300/.  which  the  bankrupt  had,  after  the  act 
of  bankruptcy,  drawn  and  delivered  to  the  defendant,  and  on  which  he  had 
received  the  -money.  As  the  paper  on  which  the  check  was  written,  had 
become  the  property  of  the  plaintiffs  under  the  assignment,  it  was  strongly 
urged  for  them,  upon  a  rule  to  set  aside  a  verdict  for  300/.,  given  by  the 
jury,  and  enter  a  non-suit,  that  they  were  at  all  events  entitled  to  judg- 
ment for  nominal  damages.  It  was,  however,  held  by  the  court,  that, 
as  the  whole  ground  of  the  action,  was  the  bankruptcy  of  the  drawee,  it 
necessarily  appeared,  that  the  check  had  no  value  for  the  purpose  for  which 
it  was  given,  and  that  under  such  circumstances,  there  could  not  be  a  reco- 
very by  the  plaintiff,  even  for  the  value  of  the  paper  for  Avhich  the  action 
was  nominally  brought.  This  doctrine  is  also  supported  by  the  case  of 
Ingolls  V.  Lord,  1  Cowen,  240,  and  in  substance,  by  that  of  Acraman  v. 
Cooper,  10  M.  &  W.  585  ;  although  it  was  there  determined,  that  tho 
defendant  was  liable  in  damages  for  the  whole  amount  of  the  bill  on  which 
he  had  received  a  part  payment  before  action  brought,  unless  he  would 
pay  that  sum  into  court,  and  deliver  up  the  instrument;  in  which  event  the 
verdict  would  be  entered  for  a  nominal  amount. 

It  is  very  obvious,  that  the  mere  finder  of  the  instrument  by  which  a 
chose  in  action  is  evidenced,  does  not  thereby  acquire  any  interest  in  the 
chose  in  action  itself,  or  in  the  contract  whereby  it  was  called  into  being  ; 
since,  even  if  it  be  negotiable  in  character,  he  has  not  taken  it  in  the  usual 
course  of  business,  nor  on  valuable  consideration.  It  follows,  that  even  in 
a  case  parallel  to  that  of  Armory  v.  Delamirie,  where  the  finder  has  deli- 


348  smith's    leading   cases. 

vered  the  instrument  to  a  party,  by  whom  the  money  due  on  its  face  to  the 
bearer,  has  been  received,,  the  latter  is  not  liable  in  any  form  of  action, 
requiring  proof  of  an  interest  in  the  contract  of  which  such  instrument  is 
the  evidence.  Thus  in  the  case  of  M'Laughlin  v.  Waite,  9  Cowen,  G70, 
where  the  defendant  had  received  the  money  due  on  a  lottery  ticket,  deli- 
vered to  him  by  the  finder,  it  was  held  that  the  latter  cOuld  not  maintain 
assu^mpsit  for  money  had  and  received  to  his  use,  since  that  would  require 
proof,  that  lie  was  entitled  to  some  interest  in  the  contract  under  which  the 
money  had  been  paid,  while  the  facts  of  the  case  showed  a  mere  finding  on 
his  part,  under  which  no  such  interest  could  arise.  The  court  seemed 
moreover,  to  be  of  opinion,  that  the  plaintilT could  not  have  maintained  tro- 
ver, under  the  circumstances  of  the  present  case,  where-the  thing  found 
was  merely  the  evidence  of  a  contract,  under  which  he  had  no  right, 
although  fully  admitting  the  authority  of  Armory  v.  Delarnirie,  with  regard 
to  the  capacity  of  the  finder  of  an  ordinary  chattel,  to  support  that  action. 
Notwithstanding  the  strength  given  to  this  view,  by  the  doctrine  that,  in 
trover  for  documents,  the  plainlid'  can  only  recover  according  to  the  value 
of  his  interest  in  the  contract  which  they  evidence,  as  supported  by  the 
cases  of  Romig  v.  Romig,  and  Matthew  v.  Shervveil,  it  may  perhaps,  be 
doubtful,  whether  the  finder  of  certain  instruments  in  writing,  such,  for 
instance,  as  bank  notes,  could  not'maintain  an  action  of  trover  against  a 
bailee,  who  should  fraudulently  receive  the  money  due  on  their  face,  and 
appropriate  it  to  his  own  purposes.  It  would  at  all  events  appear  certain, 
that  trover  may  be  maintained  for  a  check  or  note,  in  which  the  plaintiff 
has  a  substantial  interest  and  right  of  property,  although  neither  payee  nor 
indorsee.     Tilden  v.  Brown,  14  Vermont,  164. 

Whatever  may  be  the  law  with  respect  to  parties  by  whom  instruments 
evidencing  a  chose  in  action  are  found,  or  to  whom  they  are  delivered, 
under  circumstances  not  amounting  to  a  negotiation,  as  against  a  defendant, 
claiming  to  retain  them  without  right  of  any  sort,  it  is  perfectly  evident,  that 
there  can  .be  no  recovery  where  they  are  retained  by  authority  from  the 
owner.      Sylvester  v.  Girard,  4  Rawle,  185. 

By  the  courts  of  New  York,  replevin  in  the  detinuit,  and  trespass,  are 
held  equally  to  require  proof  of  an  actual  unlawful  taking  ;  and,  moreover, 
this  taking  must  have  been  from  the  possession  of  the  plaintiff;  Marshall  v. 
Davis,  1  Wend.  109;  Nash  v.  Mosher,  19  Wend.  431;  Barrett  v.  War- 
ren, 3  Hill,  350.  In  trespass,  however,  a  constructive  possession  is  uni- 
versally held  to  be  sufficient.  North  v.  Turner,  9  Sergeant  &  Rawle,  244, 
and  of  course,  is  admitted  as  such  in  replevin,  even  where  that  action  can- 
not be  supported,  for  an  injury  done  to  the  right  of  property,  by  an  unlaw- 
ful detention.  Thus,  where  a  sale  and  delivery  have  been  induced  by 
fraud,  all  that  passes  between  the  parties  is  rendered  null  ;  and,  notwith- 
standing an  actual  delivery,  the  vendor,  in  the  eye  of  the  law,  retains  not 
merely  the  right  of  property,  but  a  constructive  possession  of  the  goods 
delivered.  Ash  v.  Putman,  1  Hill,  306;  Gary  v.  Hoiailing,  1  Hill,  311. 
He  may,  therefore,  not  only  bring  trespass  or  replevin,  for  the  injury  done 
to  his  own  possession  by  the  fraud,  against  the  fraudulent  vendee,  (Gary  v. 
Hotailing,^  but  may  also  sustain  those  actions  against  any  party,  by  whom 
the  goods  are  subsequently  taken  from  the  latter,  without  his  consent. 
Thus,  in  two  recent  cases  in  New  York,  the  sherili"  has  been  held  liable  in 


ARMORY    V.     DELAMIRIE.  349 

replevin,  to  the  owner  of  goods  fraudulently  purchased  by  a  third  parly, 
for  taking  thein  in  the  hands  of  the  latter,  on  an  execution  against  him, 
under  the  impression  that  they  were  his  property.  Acker  v.  Campbell, 
23  Wend.  372  ;  Ash  v.  Pulman,  1  Hill,  302.  These  decisions  evidently 
proceeded  upon  the  ground,  that  as  the  authority  of  the  sheriff  did  not 
extend  to  seising  the  goods  of  the  plaintiff^  his  act  was  an  injury  to  the 
actual  property  which  remained  in  the  latter,  and  the  constructive  posses- 
sion with  which  that  property  was  invested  by  the  law. 

It  should,  however,  be  observed,  that  in  Gilbert  v.  Hudson,  4  Maine,  345, 
it  was  held,  that  an  attachment  or  execution  on  the  part  of  a  creditor,  whose 
debt  has  accrued  subsequently  to  the  fraudulent  sale,  would  be  good,  and 
of  course,  would  serve  as  a  complete  justification  to  the  officer  by  whom  it 
was  executed,  in  any  action  brought  against  him  by  the  vendor.  This  was 
put  on  the  g"ound,  that  the  credit  might  have  been  given  on  the  faith 
of  the  apparent  ownership  of  the  vendor,  and  the  distinction  has  since  been 
approved,  in  the  case  of  Bradley  v.  Obear,  10  New  Hampshire,  448. 

There  is  more  difficulty  in  understanding,  how  such  constructive  posses- 
sion can  be  deemed  to  exist,  when  its  existence  is  contradicted  by  the  legal 
relations  subsisting  at  the  time  between  the  owner  of  the  goods,  and  the  person 
in  whose  hands  they  are.  Thus  when  goods  belonging  to  the  plaintiff  have 
been  taken  from  hirn  by  a  previous  trespasser,  or  are  held  adversely  by  a  party 
claiming  title  to  them,  it  might  have  been  doubted  whether  he  could  main- 
tain any  action  requiring  proof  of  an  injury  to  possession,  in  order  to  recover 
damages  for  a  subsequent  injury  to  the  goods.  In  a  recent  case  in  New 
York,  however,  it  appeared  upon  the  trial,  that  a  mare,  the  property  of  the 
plaintiff^  had  been  taken  by  the  sheriff,  on  an  execution  against  a  third  per- 
son, and  sold  to  one  Townsend,  from  whose  hands  she  came  into  those  of 
the  defendant  ;  but  there  was  no  evidence  to  show  how  he  had  obtained 
her.  It  might  here  have  seemed,  that  the  adverse  possession  of  Townsend, 
was  entirely  inconsistent  with  a  constructive  possession  in  the  plaintiff,  and 
that  even  if  the  defendant,  had  been  guilty  of  a  trespass  against  the  former, 
he  could  not  be  made  liable  in  trespass,  nor,  as  the  law  is  held  in  New 
York,  in  replevin,  to  the  latter.  The  court  notwuhstanding,  expressed  a 
different  opinion,  and  ordered  a  new  trial,  for  the  purpose  of  ascertaining 
whether  the  defendant  had  obtained  the  mare  by  a  tortious  act,  or  by  the 
delivery  or  consent  of  the  party  having  her  in  his  possession.  Barrett  v. 
Warren,  3  Hill,  350. 

Where,  however,  the  defendant  has  obtained  the  goods  under  the  deli- 
very or  consent  of  the  party  in  possession,  it  would  seem  that  the  injury 
which  may  be  thereby  inflicted  on  the  property  of  the  owner,  is  not  of  a 
nature  to  enable  him  to  sustain  trespass,  nor  even  replevin  in  the  detinuit, 
where  that  action  is  held  to  require  proof  of  an  unlawful  taking.  . 

Tlius,  in  the  case  of  Marshall  v.  Davis,  1  Wend.  110,  where  a  bailee 
keeping  the  horse  of  the  plaintiff  for  hire,  sold  him  without  authority,  to  the 
defendant,  it  was  held,  that  the  action  might  have  been  supported  on  the 
constructive  possession  of  the  plaintiff,  had  the  horse  been  taken  without 
the  consent  of  the  bailee,  but  that,  as  it  was  delivered  by  him,  the  injury  to 
the  plaintiff  was  not  such  as  to  entitle  him  to  trespass,  or  replevin  in  its 
ordinary  form,  although  he  might  resort  to  replevin  in  the  detinet,  or  trover. 
In  the  earlier  case  of  Storm  v.  Livingston,  G  Johnson,  44,  it  had  been  deter- 


350  smith's   leading   cases. 

mined  by  the  same  court,  that  a  sale  made  under  similar  circumstances,  by 
an  agent,  aUhough  a  conversion  in  him,  did  not  amount  to  a  conversion  by 
the  vendee,  and  that  the  owner  could  not  recover  in  trover  as  against  the 
latter,  without  proof  of  some  new  act  of  a  tortious  nature  on  his  part,  amount- 
ing to  a  conversion. 

In  like  manner,  where  a  party  holding  the  property  of  the  plaintiff,  under 
a  lien  for  work  done,  had  delivered  it  to  the  defendant,  by  whom  it  had  been 
subsequently  sold,  although  the  same  amounted  to  a  conversion,  for  which 
a  recovery  might  have  been  had  in  trover,  it  was  notwithstanding,  held, 
that  neither  replevin  in  the  detinuit,  nor  trespass  could  be  supported,  either 
for  the  taking,  or  sale.     Nash  v.  Mosher,  19  Wend.  431. 

The  same  doctrine  was  recognized  and  applied  in  Root  v.  French,  13 
Wend.  570,  to  a  sale  made  for  a  precedent  debt,  to  the  defendant  by  a 
fraudulent  vendee,  and  although  replevin  in  the  detinuit,  or  trespass,  may 
be  supported  for  a  taking  from  such  vendee  without  his  consent,  it  was, 
notwithstanding,  determined,  that,  when  delivered  by  him,  on  a  sale  made 
in  discharge  of  a  precedent  debt,  neither  of  those  actions  could  have  been 
sustained  against  the  purchaser,  independently  of  the  change  produced  by 
tbe  revised  statutes,  which  were  said  to  have  rendered  proof  of  an  unlawful 
taking  unnecessary  in  replevin.  On  this  latter  point,  the  decision  in  Root 
V.  French,  has  since  been  overlooked  or  overruled  in  New  York. 

It  maybe  observed,  that  in  the  case  of  Barrett  v.  Warren,  Cowex,  J., 
who  dissented  from  the  majority  of  the  court,  struggled  very  hard  to  main- 
tain the  right  of  the  owner  to  support  trespass,  or  replevin  in  the  detinuit 
for  his  goods,  even  in  those  cases  in  which  they  have  come  into  the  hands 
of  the  defendant,  under  a  delivery  made  by  the  party  in  possession,  except 
in  the  single  instance,  where  the  delivery  has  been  in  execution  of  a  bona 
fide  sale,  for  a  new  and  valuable  consideration.  And  in  the  recent  case  of 
Pierce  v.  Vandyke,  6  Hill,  614,  it  was  determined,  that  where  the  plaintiff 
in  replevin  has  shown  his  title  and  an  original  tortious  taking,  the  burden 
of  proof  is  shifted,  and  it  is  incumbent  on  a  defendant  claiming  through  the 
first  wrong  doer  to  prove  not  merely  a  delivery  of  the  goods  to  himself  by 
the  latter,  but  that  they  were  received  in  good  fliith  and  without  notice  of 
the  wrongful  mode  in^which  they  had  been  acquired. 

It  has  already  been  stated,  that  under  the  decisions  of  the  courts  of  New 
York,  to  support  replevin,  requires  proof  of  an  unlawful  taking,  and  that 
evidence  of  a  mere  unlawful  detention  from  the  plaintiff^  will  not  be  suffi- 
cient. The  same  view  of  this  action  was  taken  by  Story,  J.,  in  the  case 
of  Meary  v.  Head,  1  Mason,  322.  At  the  same  time  there  would  appear 
some  difficulty  in  determining,  how  the  defendant  is  to  avail  himself  of  this 
objection,  since  even  where  he  is  prepared  to  show  that  there  has  been  no 
taking  on  his  part,  a  verdict  found  in  his  favour,  on  a  plea  of  non  cepit,  will 
not  entitle  him  to  a  judgment  of  return.  Simpson  v.  M-Farland,  18  Pick. 
430;  Whitwell  v.  Wills,  24  Pick.  30;  1  Mason,  323.  It  would  seem 
however,  to  be  held  even  in  New  York,  that  where  replevin  is  brought  in 
the  old  form  of  the  delinet  it  will  be  valid,  independently  of  any  unlawful 
taking  of  the  goods  which  it  is  intended  to  recover. 

The  law  with  regard  to  this  action,  has  been  placed  on  a  different  footing 
from  that  on  which  it  stands  in  New  York,  both  in  Massachusetts  and  Penn- 
sylvania.    The  courts  in  those  states  have  determined,  that  this  action  may 


ARMORY     V.     DELAMIRIE.  351 

be  sustained  where  there  has  been  no  unlawful  taking,  on  mere  proof  of  an 
unlawful  detention,  and  that  such  proof  will  be  sufficient  to  support  an  issue 
joined  by  the  plaintifi'on  the  plea  of  non  cepit,  since  that  plea  traverses  both 
taking  and  detention  ;  Baker  v.  Falos,  16  Massachusetts,  147;  Badger  v. 
Phinney,  15  Massachusetts,  359  ;  Mackinley  v.  M-Gregor,  3  Wharton,  390  ; 
Stoughton  V.  Rappalo,  3  Sergeant  &  Rawle,  501.  In  those  states,  therefore, 
in  whatever  manner  the  defendant  may  have  come  by  the  goods,  whether 
by  an  original  wrongful  taking,  or  by  a  delivery  from  a  third  party  already 
in  possession  ;  and  even  where  they  have  been  placed  in  his  hands  by  the 
plaintiff  himself,  the  latter  may  maintain  replevin,  either  in  the  detinet  or 
detinuit,  provided  at  the  time  of  writ  sued  out,  the  detention  on  the  part  of 
the  defendant  be  unlawful.  Such  is  also  the  case  in  New  Hampshire, 
although  the  judges  have  there  rested  their  decision,  on  the  construction  of 
the  statute  law  of  that  state,  without  deciding  how  the  question  stands  at 
common  law.      3  New  Hampshire,  184. 

It  is  however,  universally  admitted,  that  in  order  to  support  replevin, 
there  must  be  shown  an  actual  taking,  or  an  actual  detention  ;  and  that  a 
constructive  detention,  by  the  exercise  of  acts  of  ownership  respecting  the 
goods,  not  accompanied  by  manual  possession  on  the  part  of  the  defendant 
or  his  agents,  will  not  suffice.  Thus  where  goods  were  found  derelict  at 
sea,  and  deposited  in  the  custom  house  by  the  salvors,  and  the  defendant, 
having  subsequently  entered  them  as  his  own,  and  paid  the  duties,  was 
about  to  remove  them  in  carts,  when  they  were  replevied  by  the  plain- 
tiff, it  was  held,  that  an  issue  joined  on  the  plea  of  non  cepit,  must  be  found 
against  the  latter  since,  as  there  had  been  no  actual  possession,  there  could 
have  been  no  actual  taliing  or  detention.  Whitwell  v.  Wells,  24  Picker- 
ing, 30;  S.  P.  Simpson  v.  M'Farland,  18  Pickering,  433. 

There  would  seem  to  be  no  doubt  that  the  doctrine  held  in  Pennsylvania 
and  Massachusetts  is  the  better  law,  for  replevin  in  the  detinet  and  replevin 
in  the  detinuit,  or,  as  the  New  York  courts  call  it,  in  the  cepit,  is  one  and 
the  same  action,  and  the  difference  turns  merely  on  a  difierent  form  of  decla- 
ration. Moreover  where  replevin  is  followed  up  bj^  a  declaration  in  the  deti- 
net, it  frequently  claims  damages  for  an  unlawful  taking,  and  may  be  support- 
ed where  that  is  the  only  evidence  given  ;  Cummings  v.  Vorce,  3  Hill,  282  ; 
while  under  a  declaration  in  the  detinuit  or  cepit,  the  subsequent  unlaw- 
ful detention  is  always  relied  on  as  part  of  the  plaintiff's  cause  of  action.  It 
would  appear  therefore,  that  there  is  error  in  supposing  on  the  one  hand, 
that  if  the  action  of  replevin  has  been  ill  brought  in  the  first  instance,  it  can 
be  set  right  by  resorting  to  a  declaration  in  the  detinet,  which  is  merely  a 
mode  of  accommodating  the  remedy  to  the  case  in  which  the  sheriff  cannot 
or  does  not  deliver  the  goods  to  the  plaintiff:  and  on  tire  other  in  decidino-, 
that  the  defendant  by  pleading  non  cepit,  and  showing  that  there  has  been 
no  actual  unlawful  taking,  can  defeat  an  action,  which  even  when  laid  in 
the  detinuit,  relics  for  a  substantial  cause  of  bringing  suit,  as  much  upon 
the  past  unlawful  detention,  as  the  past  unlawful  taking.  Sharp  v.  Whit- 
tenhal,  3  Hill,  576. 

In  the  case  of  Root  v.  French,  13  Wendell,  570,  already  cited,  the 
Supreme  Court  of  New  York  sustained  an  action  of  replevin  against  a  bona 
fide  purchaser,  for  a  preceding  debt  from  a  vendee,  who  had  fraudulently 
obtained   possession    without   payment,   and    determined,  that    under  the 


352  smith's   leading   cases. 

revised  statutes,  no  proof  of  an  unlawful  taking  was  necessary  to  support 
replevin  ;  proof  of  an  unlawful  detention  being  sufficient.  It  is  therefore 
difficult  to  understand  why  the  same  court,  without  taking  notice  of  the 
statute,  determined  the  case  of  Barrett  v.  Warren  according  to  the  older 
decisions,  which  placed  replevin  on  the  footing  of  trespass. 

The  Supreme  Court  of  Massachusetts  has,  on  several  occasions,  deter- 
mined, that  when  necessar}^  for  the  purposes  of  justice,  they  would,  in 
entering  judgment  on  an  action  of  replevin,  have  regard  to  facts  occurring 
after  action  brought,  if  placed  before  them  by  a  proper  plea,  a  case  slated,  a 
special  verdict,  or  even  as  it  would  seem,  by  the  report  on  evidence  of  the 
judge  before  whom  the  case  vv'as  tried.  Thus,  while  under  the  common 
traverse  of  the  property  of  the  plaintiff,  it  was  fully  admitted  that  if  the 
issue  were  found  for  the  defendant,  he  would  under  ordinary  circumstances, 
be  entitled  to  a  judgment  de  retorno  habendo,  as  well  as  for  damages  and 
costs  ;  it  was  notwithstanding  held,  that  if  the  property  in  the  defendant,  or 
a  third  person,  given  in  evidence  to  disprove  a  present  right  of  property  on 
the  part  of  the  plaintiff,  while  existing  at  the  time  of  action  brought  appeared 
subsequently  to  have  ceased,  so  that  the  reversionary  interest  of  the  latter 
had  become  a  right  to  immediate  possession,  the  judgment  entered  for  the 
defendant  would  be  rricrely  for  costs,  without  damages,  to  an  award  de  retorno 
habendo;  Wheeler  v.  Train,  4  Pickering,  168.  The  same  law  will  apply 
where  the  property  relied  on  in  the  defence,  as  disproving  that  of  the  plain- 
tiff, has  terminated  in  any  other  manner  before  the  lime  of  entering  judg- 
ment;  as  where  it  arose  under  an  attachment  which  has  subsequently 
expired  by  lapse  of  time  ;  Simpson  v.  M-Farland,  18  Pickering,  433.  In 
like  manner,  if  the  goods,  during  the  continuance  of  the  action,  be  by  pro- 
cess of  law,  sold  and  converted  into  cash  under  the  operation  of  liens  or 
claims  in  rem,  attaching  to  them  before  the  time  of  suit  brought,  judgment 
de  retorno  habendo  will  not  be  entered  against  the  plaintiff  for  the  purpose 
of  compelling  him  to  render  to  the  defendant,  that  which  the  act  of  the  law 
has  rendered  it  impossible  to  return,  but  the  defendant  will  obtain  a  judg- 
ment for  his  costs,  and  be  remitted  to  the  fund  arising  out  of  the  sale,  for  his 
claim  upon  the  goods  themselves  ;  Whitwell  v.  Wells,  24  Pickering,  30. 
But  in  order  to  justify  the  court,  where  a  traverse  of  the  plaintiff's  property 
has  been  found  for  the  defendant,  in  refusing  him  judgment  for  a  return,  it 
must  appear  not  only  that  the  duration  of  the  limited  property,  shown  iii 
opposition  to  that  of  the  plaintiff,  has  ceased,  but  that  there  has  been  a 
reversionary  or  contingent  interest  in  the  latter,  which  has  vested  in  posses- 
sion upon  such  ceasing.  Under  any  other  course,  the  plaintiff  might  retain 
a  possession  of  the  goods  which  he  had  gained,  by  tortiously  issuing  the 
writ,  without  being  entitled  either  to  property  or  possession.  Collins  v. 
Evans,  15  Pickering,  53. 

H. 


COLLINS    V.     BLANTERV.  353 

*COLLINS   I'.    BLANTERN.  [*154] 

EASTER— 7  GEORGE  3  E.  B. 
[reported  2  WILSON,  341.] 

Illegality  may  be  pleaded  as  a  defence  to  an  action  on  a  bond. 

Shropshire,  to  wit.  Robert  Blantern,  late  of  Roden hurst  in  the  said 
county,  yeoman,  was  summoned  to  answer  Edward  Collins  of  a  plea,  that 
he  render  to  him  seven  hundred  pounds  which  he  owes  to  and  unjustly 
detains  from  him,  &c.  Whereupon  the  said  Edward  Collins,  by  John 
Leake  his  attorney,  says,  that  whereas  the  said  Robert  Blantern  on  the 
sixth  day  of  April,  which  was  in  the  year  of  our  Lord,  1765,  at  Roden- 
hurst  aforesaid  in  the  county  aforesaid,  by  his  certain  writing-  obligatory 
acknowledged  himself  to  be  held  and  firmly  bound  unto  the  said  Edward 
Collins  in  the  aforesaid  sum  of  seven  hundred  pounds  to  be  paid  to  the  said 
Edward  Collins  when  he  should  be  thereunto  required ;  nevertheless,  the 
said  Robert  Blantern  (although  often  thereunto  required)  hath  not  paid  the 
said  seven  hundred  pounds  to  the  said  Edward  Collins,  but  hath  hitherto 
refused  and  still  doth  refuse,  to  pay  the  same  to  the  said  Edward  Collins, 
wherefore  he  says  that  he  is  the  worse,  and  hath  damages  to  the  value  of 
ten  pounds,  and  therefore  he  brings  suit,  and  so  forth ;  and  he  brings  here 
into  court  the  aforesaid  writing  obligatory,  which  testifies  the  said  debt  in 
form  aforesaid,  the  date  whereof  is  the  same  day  and  year  above  men- 
tioned. 

And  the  said  Robert,  by  George  Greene,  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  &c.,  and  craves  oyer  of  the  said  supposed 
writing  obligatory,  and  it  is  read  to  him  in  these  words  :  to  wit.  Know  all 
men  by  these  presents,  that  we,  John  Walker  of  Forton,  in  the  county  of 
Stafford,  yeoman,  Thomas  Walker  of  Draycott-in-the-Moors,  *in  j^.__-. 
the  said  county  of  Stafford,  yeoman,  and  Robert  Blantern  of  Roden-  L  J 
hurst,  in  the  county  of  Salop,  yeoman,  are  held  and  firmly  bound  to  Edward 
Collins  of  Brecond  in  the  said  county  of  Stafford,  surgeon,  in  the  sum  of 
seven  hundred  pounds  of  good  and  lawful  money  of  Great  Britain,  to  be 
paid  to  the  said  Edward  Collins,  or  his  certain  attorney,  executors,  admi- 
nistrators, or  assigns,  for  which  payment,  to  be  well  and  faithfully  made, 
we  bind  ourselves  and  each  and  every  of  us  jointly  and  severally,  our  and 
each  and  every  of  our  heirs,  executors,  and  administrators,  firmly  by  these 
presents,  sealed  with  our  seals  ;  dated  this  sixth  day  of  April,  in  the  fifth 
year  of  the  reign  of  our  sovereign  lord  George  the  Third,  by  the  grace  of 
God,  of  Great  Britain,  France,  and  Ireland  king,  defender  of  the  faith,  and 
so  forth,  and  in  the  year  of  our  Lord  one  thousand  seven  hundred  and 
sixty-five  ;  he  also  craves  oyer  of  the  condition  of  the  said  supposed  writing 

Vol.  I 23 


354  smith's     LEADING     CASES. 

obligator}?-,  and  it  is  read  to  him  in  these  words,  to  wit.  The  condition  of  this 
obligation  is  such,  that  if  the  above-bounden  John  Walker,  Thomas  Walker, 
and  Robert  Blantern,  our  heirs,  executors,  or  administrators,  shall  and  do 
well  and  truly  pay  or  cause  to  be  paid  unto  the  above  named  Edward  Col- 
lins, his  executors,  administrators,  or  assigns,  the  full  sum  of  three  hundred 
and  fifty  pounds  of  good  and  lawful  money  of  Great  Britain,  upon  the  sixth 
day  of  May  next,  without  fraud  or  further  delay,  then  this  obligation  to  be 
void  and  of  none  effect,  or  else  to  remain  in  full  force  and  virtue  ;  which 
being  read  and  heard,  the  said  Robert  saith,  that  the  said  Edward  ought  not 
to  have  his  aforesaid  action  thereof  against  him  the  said  Robert,  because  he 
says  that  the  said  supposed  ivriting  obligatory  is  not  his  deed,  and  of  this  he 
puts  himself  upon  the  country,  &c.  And  for  further  plea  in  this  behalf  the 
said  Robert,  by  leave  of  the  court  here  for  this  purpose  first  had  and 
obtained,  according  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided says,  that  the  said  Edward  ought  not  to  have  his  aforesaid  action 
thereof  against  him,  because  he  says  that  before,  and  at  the  time  of  the 
making  of  the  above-mentioned  supposed  writing  obligatory,  and  also  before 
and  at  the  time  of  the  making  of  the  promissory  note  hereafter  mentioned,  to 
wit,  at  Rodenhurst  aforesaid,  the  said  John  Walker  and  Thomas  Walker 
r*i  f\al  ^'^  *''^^  ^^''^  supposed  writing  obligatory  named,  and  also  one  Robert 
L  J  Walker,  one  Thomas  Scillitoe,  and  one  John  Cullick,  stood  respec- 
tively indicted  in  a  due- course  of  law  on  the  prosecution  of  one  John  Rudge, 
by  five  several  and  respective  indictments,  for  wilful  and  corrupt  perjury, 
to  which  said  several  and  respective  indictments  the  said  John  Walker, 
Thomas  Walker,  Robert  Walker,  Thomas  Scillitoe  and  John  Cullick,  had 
respectively  pleaded  the  several  pleas  of  not  guilty  before  the  making  of 
the  said  supposed  writing  obligatory,  and  also  before  the  time  of  the  making 
of  the  said  note  hereafter  mentioned ;  and  the  traverses  of  the  said  John 
Walker,  Thomas  Walker,  Robert  Walker,  Thomas  Scillitoe,  and  John  Cul- 
lick respectively  on  the  respective  indictments  were,  at  the  time  of  the 
making  of  the  unlawful,  wicked,  and  corrupt  agreement  hereafter  men- 
tioned, and  of  the  note  hereafter  mentioned,  and  also  of  the  above,  sup- 
posed writing  obligatory,'  ta  wit,  on  the  day  whereon  the  said  supposed 
writing  obligatory  was  made,  about  to  come  on  to  be  tried  at  the  assizes 
then,  to  ivit,  on  that  day,-  being,  and  continuing  to  be,  held  at  Stafford  for 
the  county  of  Stafford,  and  that  the  said  John  W^alker,  Thomas  Walker, 
Robert  Walker,  Thomas  Scillitoe,  and  John  Cullick,  so  standing  indicted  on 
the  prosecution  of  the  said  John  Rudge,  and  the  said  traverses  so  being 
about  to  be  tried  as  aforesaid,  it  was  on  the  said  sixth  day  of  April  in  the 
year  1765,  in  the  said  writing  obligatory  mentioned,  to  wit,  at  Rodenhurst 
aforesaid,  unlawfully,  wickedly,  and  corruptly  agreed  by  and  between  the 
said  John  Rudge,  the  prosecutor  of  the  indictments  aforesaid,  the  said 
Edward  Collins  the  plaintiff',  and  the  said  John  Walker,  Thomas  Walker, 
Robert  Walker,  Thomas  Scillitoe,  and  John  Cullick,  the  defendants  in  these 
respective  indictments,  that  the  said  Edward  Collins  the  now  plaintiff' should 
give  to  the  said  John  Rudge,  the  prosecutor  of  the  indictments  aforesaid,  his 
note  in  writing,  commonly  called  a  promissory  note,  as  and  for  value 
received,  to  bear  date  on  a  certain  day  and  in  a  certain  year  now  past,  to 
ivit,  on  the  day  and  year  last  mentioned,  for  a  large  sum  of  monej'-,  to  wit, 
the  sum  of  three  hundred  and  fifty  pounds,  payable  to  the  said  John  Rudge 


COLLINS     V.     BLANTERN.  355 

thereafter,  to  tv'if,  one  month  after  the  date  thereof,  as  a  consideration  for 
his  the  said  John  Rudge's  *not  appearing  to  give  evidence  as  pro-  r*^^-,-. 
secutor  on  the  trial  of  any  or  either  of  the  traverses  aforesaid,  against  <-  ^ 
any  or  either  of  the  defendants,  and  tiiat  in  consideration  thereof  the  said 
John  Rudge  should  not,  nor  would  appear  at  the  trial  of  the  traverses  afore- 
said as  prosecutor,  and  should  not,  nor  would  give  evidence  on  any  or 
either  of  the  said  indictments  against  any  or  either  of  the  parties  so  standing 
indicted  as  aforesaid,  and  that  the  said  John  Walker,  Thomas  Walker,  and 
Robert  Blantern  the  now  defendant,  should  seal,  and  as  their  deed  deliver 
unto  the  said  Edward  Collins  their  bond  or  obligation  of  the  same  date  with 
the  said  note  in  the  penal  sum  of  seven  hundred  pounds,  with  a  condition 
thereunder  written  for  the  payment  of  three  hundred  and  fifty  pounds  on 
the  sixth  day  of  May  then  next  and  now  elapsed,  as  an  indemnity  to  him 
the  said  Edward  Collins  for  the  giving  of  such  note  ;  and  the  said  Robert 
Blantern  further  saith,  that  in  pursuance  and  in  part  performance  of  the  said 
unlawful,  wicked,  and  corrupt  agreement,  the  said  Edward  Collins  did  then' 
and  there,  before  the  trial  of  the  said  traversers,  or  any  or  either,  of  them,  to 
wit,  on  the  said  sixth  day  of  April,  in  the  year  1765  aforesaid,  at  Roden- 
hurst  aforesaid,  make,  give,  and  deliver  unto  the  said  John  Rudge  his  cer- 
tain note  in  writing,  commonly  called  a  promissory  note,  bearing  date  as 
aforesaid,  to  wit,  on  the  day  and  in  the  year  last  mentioned,  for  the  sum  of 
three  hundred  and  fifty  pounds,  as  for  value  received,  payable  to  the  said 
John  Rudge  thereafter,  to  wit,  one  month  after  the  date  thereof,  according 
to  the  tenor  and  effect  of  the  agreement  aforesaid,  as  a  consideration  for  his 
the  said  John  Rudge's  not  appearing  as  prosecutor,  and  for  his  not  giving 
evidence  as  prosecutor  on  the  trial  of  any  or  either  of  the  traverses  afore- 
said, against  any  or  either  of  the  parties  so  indicted  as  aforesaid  ;  and  that 
in  pursuance  of  the  said  unlawful,  wicked,  and  corrupt  agreement,,  and 
according  to  the  tenor  and  effect  thereof,  the  said  John  Rudge  then  and 
there  accepted,  had,  and  received  the  said  note  of  and  from  the  said  Edward 
Collins  for  the  purpose  aforesaid,  and  in  part  performance  of  the  aforesaid 
unlawful,  wicked,  and  corrupt  agreement ;  and  that  in  further  pursuance 
and  completion  of  the  said  unlawful,  wicked,  and  corrupt  agreement,  and 
according  to  the  terms  and  effect  thereof,  the  said  John  Walker,  Thomas 
Walker,  and  Robert  Blantern  the  now  defendant,  did  then  and  there  imme- 
diately *after  the  giving  of  the  said  note,  and  before  the  trial  of  the  psirai 
traverses  aforesaid,  or  of  any  or  either  of  them,  to  ivit,  on  the  said  L  -■ 
6th  day  of  April,  in  the  year  1765  aforesaid,  seal,  and  as  their  deed  deliver 
unlo  the  said  Edward  Collins  the  said  writing,  now  brought  here  into  court, 
■with  the  condition  above  specified,  as  an  indemnity  to  him  the  said  Edwai'd 
Collins  for  the  giving  of  such  note  so  given  for  the  cause  aforesaid ;  and  the 
said  Robert  Blantern  further  saith,  that  the  said  Edward  Collins  then  and 
there  at  the  time  of  the  giving  of  the  said  note  to  the  said  John  Rudo'e  well 
knew  for  what  cause  and  consideration  the  same  was  so  given,  and  that  the 
said  Edward  Collins,  at  the  time  of  the  sealing  and  delivering  to  him  of  the 
writing  now  brought  here  into  court,  took,  accepted,  and  received  the  same 
of  and  from  the  said  John  Walker,  Thomas  Walker,  and  Robert  Blantern 
the  now  defendant,  as  an  indemnity  against  the  aforesaid  note,  with  this, 
Ihat  the  said  Robert  Blantern  dolh  aver,  that  the  said  supposed  writing  obli- 
gatory now  brought  here  into  court  was  given  for  such  consideration  as 


356  smith's   leading   cases. 

aforesaid,  and  no  other  whatsoever  ;  and  that  he  the  said  Robert  Blantern 
and  the  said  John  Walker  and  Thomas  Walker  mentioned  in  the  said  sup- 
posed writing  obligatory  were  not,  not  were,  or  was  any  or  either  of  them, 
at  the  time  of  the  making  of  the  aforesaid  note,  or  at  the  time  of  the  sealing 
or  delivering  of  the  said  supposed  writing  obligatory  to  the  said  Edward 
Collins,  or  at  the  time  of  his  acceptance  of  the  said  supposed  writing  obli- 
gatory, in  any  wise  indebted  to  the  said  Edward  Collins  or  to  the  said  John 
Rudge  in  any  sum  of  money  or  in  any  other  respect  whatsoever ;  and  so 
the  said  Robert  Blantern  saith,  that  the  said  supposed  ivriting  obligatory 
so  made  and  given  by  them  the  said  Robert  Blantern,  John  Walker,  and 
Thomas  Walker,  for  the  cause  aforesaid,  is  void  in  law,  and  this  he  is  ready 
to  verify ;  wherefore  he  prays  judgment  if  the  said  Edward  Collins  ought 
to  have  his  aforesaid  action  thereof  against  him,  &c.  Andfor  further  plea 
in  this  behalf,  the  said  Robert  Blantern  b)^  like  leave  of  the  court  here  for 
this  purpose  first  had  and  obtained,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  says,  that  the  said  Edward  ought  not  to  have 
his  aforesaid  action  against  him,  because  he  says  that  the  said  supposed 
writing  obligatory  was  given  by  the  said  Robert  Blantern,  John  Walker, 
r*i  (iQl  *^"'^  Thomas  Walker,  to  the  said  Edward,  to  wit,  at  Rodenhurst 
L  -'  aforesaid,  to  indemnify  the  said  Edward  against  a  certain  note  in 
writing  of  the  said  Edward's,  commonly  called  a  promissory  note,  then,  to 
ivit,  on  the  said  sixth  day  of  April,  in  the  year  1765  aforesaid,  to  ivit,  at 
Rodenhurst  aforesaid,  given  by  the  said  Edward  Collins  to  the  said  John 
Rudge,  as  for  value  received,  bearing  date  on  a  certain  day  and  in  a  certain 
year  now  past,  to  wit,  on  the  day  and  year  last  aforesaid,  whereby  the  said 
Edward  promised  to  pay  to  the  said  John  Rudge  a  certain  sum  of  money, 
to  ivit,  the  sum  of  three  hundred  and  fifty  pounds,  as  for  value  received  at 
a  certain  time  thereafter  to  wit,  one  month  after  the  date  of-  the  said  note, 
which  said  note  still  remains  unpaid,  and  that  the  said  Edward  Collins  hath 
not  been  in  any  wise  damnified  by  means  of  the  said  note,  or  of  the  giving 
of  the  same  ;  and  this  the  said  Robert  Blantern  is  ready  to  verify  ;  where- 
fore he  prays  judgment  if  the  said  Edward  ought  to  have  his  aforesaid  action 
thereof  against  him,  &c. 

John  Glvnn. 

And  the  said  EdAvard  Collins,  as  to  the  said  plea  of  the  said  Robert  by 
him  first  above  pleaded  in  bar,  and  whereof  he  hath  put  himself  upon  the 
country,  says,  that  he  the  said  Edward  doth  the"  same  likewise  ;  and  the 
said  Edward,  as  to  the  said  plea  of  the  said  Robert  by  him  secondly  above 
pleaded  in  bar,  says  that  he,  by  reason  of  any  thing  by  the  said  Robert 
above  in  that  plea  alleged,  ought  not  to  be  barred  from  having  and  maintain- 
ing his  said  action  against  the  said  Robert,  because  he  says  that  the  same 
plea,  in  manner  and  form  as  the  same  is  above  pleaded,  and  the  matters 
therein  contained,  are  not  sufficient  in  law  to  bar  the  said  Edward  from 
having  his  said  action  against  the  said  Robert,  to  vvhich  said  plea,  in  manner 
and  form  above  pleaded,  the  said  Edwar<l  Collins  hath  no  heed,  nor  is  he 
bound  by  the  law  of  the  land  in  any  manner  to  answer ;  and  this  he  is  ready 
to  verify:  wherefore  for  want  of  a  sufficient  plea  in  this  behalf,  the  said 
Edward  Collins  prays  judgment  and  his  debt  aforesaid,  togetlier  with  his 
damages,  by  occasion  of  the  detaining  that  debt,  to  be  adjudged  to  him,  &c. ; 


COLLINS     V.     BLANTERN. 


357 


and  the  said  Edward  Collins,  as  to  the  said  plea  of  the  said  Robert  by  him 
lastly  above  pleaded  in  bar  says,  that  he  by  reason  of  any  thinp:,  by  the  said 
Robert,  above  *in  that  "plea  alleged,  ought  not  to  be  barred  from  ^-j 

havino-  and  maintaining  his  said  action  against  the  said  Robert,  ^ 
because  he  says  that  the  same  plea,  in  manner  and  form  as  the  same  is 
above  pleaded,  and  the  matters  therein  contained,  are  not  sufficient  in  law 
to  bar  the  said  Edward  from  having  his  said  action  against  the  said  Robert, 
to  which  said  plea,  in  manner  and  form  above  pleaded,  the  said  Edward 
Collins  hath  no  need,  nor  is  he  bound  by  the  law  of  the  land  in  any  manner 
to  answer  ;  and  this  he  is  ready  to  verify  ;  wherefore  for  want  of  a  sufficient 
plea  in  this  behalf,  the  said  Edward  Collins  prays  judgment,  and  his  debt 
aforesaid,  together  with  his  damages,  by  occasion  of  the  detainmg  that  debt, 

to  be  adjudged  to  him,  &c. 

■'  G.  Nares. 

And  the  said  Robert  saith,  that  the  said  plea  by  him  the  said  Robert 
secondly  above  pleaded  in  bar,  in  manner  and  form  as  the  same  is  above 
pleaded,  and  the  matters  therein  contained,  are  sufficient  in  law  to  bar  the 
said  Edward  from  having  his  said  action  against  the  said  Robert,  which  said 
plea,  and  the  matters  therein  contained,  he  the  said  Robert  is  ready  to  verify 
and  prove,  as  the  said  court  shall  award ;  and  because  the  said  Edward 
hath  not  in  any  manner  answered  thereto,  nor  in  any  wise  denied  the  same, 
he  the  said  Robert  prays  judgment, and  that  the  said  Edward  may  be  barred 
from  having  his  said  action  thereof  against  him  the  said  Robert,  &c.,  and 
because  the°  justices  here  will  advise  of  and  upon  the  premises  before  that 
they  give  judgment  thereupon,  day  is  given  to  the  parties  aforesaid  here 

until! , 1  to  hear  their  judgment  thereupon,  so  that  the  said  justices 

here  are  not  yet  ready  to  give  judgment  thereon ;  and  the  said  Robert  fur- 
ther saith,  that  the  said  plea  by  him  the  said  Robert  lastly  above  pleaded  in 
bar  in  manner  and  form  as  the  same  is  above  pleaded,  and  the  matters 
therein  contained,  are  sufficient  in  law  to  bar  the  said  Edward  from  having 
his  said  action  against  him  the  said  Robert,  which  said  plea,  and  the  matters 
therein  contained,  he  the  said  Robert  is  ready  to  verify  and  prove,  as  the 
court  shall  award  ;  and  because  the  said  Edward  hath  not  in  any  manner 
answered  thereto,  nor  in  any  wise  denied  the  same,  he  the  said  Robert 
prays  judgment,  and  that  the  said  Edward  may  be  barred  from  having  his 
said  action  thereof  against  him  the  said  Robert,  &c. 

John  Glynn. 

*And  because  the  justices   here  will   advise   of  and   upon  the  p*jgj-, 
premises  before  that  they  give  judgment  thereupon,  day  is  given  to    L 

the  parties  aforesaid  here  until to  hear  their  judgment  thereupon, 

for  that  the  said  justices  here  are  not  as  yet  ready  to  give  judgment  thereon  ; 
and  in  order  to  try  the  issue  between  the  parties  aforesaid  above  joined  to 
be  tried  by  the  country,  the  sheriff  is  commanded  that  he  cause  to  come 
here  in  eight  days  of  the  purification  of  the  blessed  Mary  twelve,  &c.,  by 
whom,  &c.,  and  who  neither,  &c.,  to  recognise,  &c.,  because  as  well,  &c. 

COLLINS  v.  BLANTERN. 
Tins  case  was  well  agued  last  Hilary  term  by  Serjeant  Nares  for  the 


3  58  smith'sleadingcases. 

plaintiff' and  Serjeant  Glynn  for  the  defendant,  and  in  this  term  by  Serjeant 
Burland  for  the  plaintiff,  and  Serjeant  Jephson  for  the  defendant. 

On  the  side  of  the  plaintiff  it  was  insisted  that  the  condition  of  the  bond 
being  singly  for  the  payment  of  a  sum  of  money,  the  bond  is  good  and  law- 
ful;  and  that  no  averment  shall  be  admitted  that  the  bond  Avas  given  upon 
an  unlawful  consideration  not  appearing  upon  the  face  of  it,  and  therefore 
that  the  special  plea  is  bad  ;  upon  the  first  argument  these  cases  were  cited 
for  the  plaintiff',  Carth.  252  ;  Comb,  121,  Thomson  v.  Harvey  ;  Lady  Dow- 
ning V.  Chapman,t  C  B.,  Mich,  6  Geo,  2,  (now  depending  in  error  in  B. 
R.)  ;  1  Leon.  73,  203;  Jenk.  106;  Carth.  300;  Comb.  245;  Empson  v. 
Bathurst,  1  Mod.  35  ;  Hutton,  52  ;  Vent.  331  ;  Cro.  Jac.  248. 

For  the  defendant  it  was  insisted,  that  the  averment  of  the  wicked  and 
unlawful  consideration  of  giving  the  bond,  might  well  be  pleaded,  although 
it  doth  not  appear  upon  the  face  of  the  deed  ;  and  that  any  thing  which 
shows  an  obligation  to  be  void,  may  vi^'ell  be  averred,  although  it  doth  not 
appear  on  the  face  of  the  bond,  as  duress :  that  it  was  delivered  as  an  escrow 
to  be  delivered  upon  a  certain  condition  to  the  obligee  ;  infancy,  coverture, 
or  upon  a  simoniacal  contract,  maintenance,  ^'C. ;  and  although  it  is  said, 
there  is  a  diff'erence  between  bonds  being  void  at  common  law,  and  be 
statute,  yet  it  is  otherwise,  for  the  common  law  was  originally  by  statutes 
which  are  now  not  in  being;  the  general  rule  that  you  cannot  plead  any 
matter  dehors  the  deed,  doth  not  apply  to  this  case  ;  the  true  meaning  of 
^  -  -,  that  rule  is,  *lhat  you  cannot  allege  any  thing  inconsistent  with  and 
L  J  contrary  to  the  deed,  but  you  may  allege  matter  consistent  with 
j  the  deed  ;  the  bond  in  the  present  case  is  for  the  payment  of  money.  This 
^•-  plea  admits  this,  and  the  averment  alleges  upon  what  considerationthat 
money  was  to  be  paid,  and  therefore  is  not  inconsistent  or  contradictory  to 
the  condition  of  the  bond  ;  this  rule  of  pleading,  applied  to  the  cases  of 
simony,  duress,  coverture,  infancy,  ^c,  is  on  the  side  of  the  defendant  in 
this  case.  In  bonds  not  to  follow  a  trade  the  defendant  may  aver  the  con- 
sideration to  avoid  the  bond.  Downing  v.  Chapman  is  not  like  this  case, 
that  was  an  averment  contrary  to  the  condition  of  the  bond,  and  amounted 
to  a  defeasance,  the  present  condition  is  consistent  with  the  condition,  which 
is  for  payment  of  money,  and  only  shows  the  bad  consideration  upon  which 
the  money  was  to  be  paid. 

Upon  the  first  argument,  the  Lord  Chief  Justice  broke  the  case,  and  said 
that  this  was  very  different  from  the  case  of  Lady  Downing  v.  Chapman, 
and  therefore  he  would  consider  it  wholly  independent  thereof;  and  said, 
as  he  was  then  advised,  he  thought  there  was  no  difference  between  an  act 
being  void  by  statute  or  by  the  common  law,  that  the  principle  the  judges 
heretofore  have  gone  upon  for  making  the  distinctions  (in  the  books)  is  not 
a  sound  one  ;  for  wherever  the  bond  is  void  at  law  or  by  statute,  you  may 
show  how  it  is  void  by  plea,  and  that  in  truth  it  never  had  any  legal  exist- 
ence. That  the  statute  law  is  the  will  of  the  legislature  in  writing;  the 
common  law  is  nothing  else  but  statutes  worn  out  by  time  ;  all  our  law 
began  by  coni?ent  of  the  legislature,  and  whether  it  is  now  law  by  usage  or 
writincr,  it  is  the  same  thing;  a  statute  says  such  a  thing  shall  be  avoided 
by  plea,  why  therefore  may  not  a  deed  executed  upon  a  consideration 

t  Tills  case  will  be  found  reported  9  East,  414,  in  nota. 


COLLINS     V.     BLANTERN.  359 

against  the  common  law  be  avoided  by  plea  ?  In  duress,  simony,  infancy, 
coverture,  &c.,  the  plea  discloses  that  in  truth  there  never  was  any  obliga- 
tion. The  principle,  upon  which  courts  of  justice  must  go,  is,  to  enforce 
the  performance  of  contracts  not  injurious  to  society  ;  and  it  would  be  absurd 
to  say  that  a  court  of  justice  shall  be  bound,  to  enforce  contracts  injurious 
to,  or  against  the  public  good.  No  man  shall  come  into  a  court,  and  say, 
"  Give  me  a  silm  of  money  which  I  desire  to  have  contrary  to  law  ;"  there 
can  be  no  doubt  but  that  the  compounding  *a  prosecution  for  wilful  p^jg3-| 
and  corrupt  perjury  is  a  very  great  ofTence  to  the  public,  and  L 
whether  it  was  between  some  persons  who  are  strangers  to  this  action,  it  is 
not  material. 

Bathurst,  Justice,  (upon  breaking  this  case,)  said  that  the  case  of  Lady 
Downing  v.  Chapman  was  not  like  it.  (Dr.  and  Stud.  12.  2  Vent.  107. 
Godb.  29.) 

Gould,  Justice,  (upon  the  breaking  this  case,)  said  that  he  differed  with 
the  rest  of  the  court  in  the  judgment  given  in  Lady  Downing  v.  Chapman, 
and  that  upon  the  whole  of  that  case  he  thought  the  averment  that  the  bond 
there  given  was  upon  a  "wicked  consideration,  ought  to  have  been  admitted  ; 
he  said  that  if  this  case  at  bar  had  been  upon  a  simple  contract,  the  court 
would  not  have  hesitated  a  moment,  but  would  have  given  judgment  that 
it  was  bad ;  and  shall  the  court  sanctify  a  deed  made  upon  a  wicked  consi- 
deration because  it  is  sealed  ?  To  have  a  deed  which  ought  to  be  for  a 
man's  good  turned  to  evil  purposes,  he  thought  very  wrong,  and  that  there 
was  no  distinction,  whether  a  deed  be  void  at  law  or  by  statute. 

Upon  the  second  argument  of  the  case  at  bar  in  this  term,  the  Lord  Chief 
Justice  delivered  the  opinion  of  the  whole  court  (and  pronounced  judgment 
for  the  defendant)  to  the  following  effect. 

Lord  Chief  Justice  Wilmot.     Four  questions  are  to  be  considered  : 
1st.  Whether  it  doth  not  appear  from  the  facts  alleged  in  the  second  plea, 
that  the  consideration  for  giving  the  bond  is  an  illegal  consideration  ? 

2nd.  Whether  a  bond  given  for  an  illegal  consideration  is  not  clearly  void 
at  common  law  ab  initio  ? 

3rd.  Supposing  the  bond  is  void,  whether  the  focts  disclosed  in  the  plea 
to  show  it  void,  can  by  law  be  averred  and  specially  pleaded  ? 

4th.  If  they  can  be  pleaded,  then  whether  this  second  plea  is  duly,  aptly, 
and  properly  pleaded  ? 

1.  As  to  the  first  question,  it  hath  been  insisted  for  the  plaintiff,  that  he 
was  not  privy  to  the  bargain  and  agreement,  so,  as  to  him,  there  appears  to 
be  nothing  illegal  done  by  him  But  we  are  all  clearly  of  opinion,  that  the 
whole  of  the  transaction  is  to  be  considered  as  one  entire  agreement ;  for 
the  bond  and  note  are  both  dated  upon  the  same  day,  for  payment  of  the 
same  sum  of  money  on  the  same  day  ;  the  manner  of  the  transaction  was 
to  gild  over  ''-and  conceal  the  truth;  and  whenever  courts  of  law  r-^^^oA-t 
see  such  attempts  made  to  conceal  such  wicked  deeds,  they  will  L  J 
brush  away  the  cobweb  varnish,  and  siiow  the  transactions  in  their  true 
light.  This  is  an  agreement  to  stifle  a  prosecution  for  wilful  and  corrupt 
perjury,  a  crime  most  detrimental  to  the  commonwealth;  for  it  is  the  duty 
of  every  man  to  prosecute,  appear  against,  and  bring  offenders  of  this  sort 
to  justice.  Many  felonies  are  not  so  enormous  offences  as  perjury,  and 
therefore  to  stifle  a  prosecution  for  perjury  seems   to  be  a  greater  ofleuce 


360  smith's  leading  cases. 

than  compounding  some  felonies.  The  promissory  note  was  certainly  void?; 
what  right  then  hath  the  plaintiff  to  recover  upon  this  bond,  which  was 
given  to  indemnify  him  from  a  note  that  was  void?  They  are  both  bad, 
the  consideration  for  giving  them  being  wicked  and  unlawful. 

2.  As  to  the  second  point,  we  are  all  of  opinion  that  the  bond  is  void  ab 
initio,  by  the  common  law,  by  the  civil  law,  moral  law,  and  all  laws  what- 
ever; and  it  is  so  held  by  all  writers  whatsoever  upon  this  subject,  except 
in  one  passage  in  Grotius,  lib.  .2,  cap.  11,  sect.  9,  where  I  think  he  is 
greatly  mistaken,  and  differs  from  Puffendorf,  lib.  3,  cap.  8,  sect.  8,  who, 
in  my  opinion,  convicts  the  doctrine  of  Grotius.  In  Justin.  Inslit.  lib.  3,  tit. 
20,  de  turpi  causa,  sect.  23.  Gluod  turpi  ex  causa  promissum  est,  veluti  si 
quis  homicidium  vel  sacrilegium  se  facturum  promittat,  non  valet.  And 
Vinnius,  in  his  commentary,  carries  it  so  far  as  to  say,  you  shall  not  stipulate 
or  promise  to  pay  money  to  a  man  not  to  do  a  crime.  Si  quis  pecuniam, 
promiserit,  ne  furtum  aut  caedem  faceret,  aut  sub  conditione,  si  non  fecerit, 
adhuc  dicendum  stipulationem  nullius  esse  momenli ;  cum  hoc  ipsum  flagi- 
tiosum  est,  pecuniam  pacisci  quo  flagitio  abstineas.  Dig.  Lib.  1,  tit.  5. 
Code,  hb.  4,  tit.  7,  to  the  same  point. 

This  is  a  contract  to  tempt  a  man  to  transgress  the  law,  to  do  that  which 
is  injurious  to  the  community;  it  is  void  by  the  common  law ;  and  the  rea- 
son why  the  common  law  says  such  contracts  are  void,  is  for  the  public 
good.  You  shall  not  stipulate  for  iniquity.  All  writers  upon  our  law 
agree  in  this,  no  polluted  hand  shall  touch  the  pure  fountains  of  justice. 
Whoever  is  a  party  to  an  unlawful  contract,  if  he  hath  once  paid  the  money 
stipulated  to  be  paid  in  pursuance  thereof,  he  shall  not  have  the  help  of  a 
r*ifi'i1  court  to  fetch  it  back  again,  you  shall  not  have  a  right  of  action 
L  J  *whenyou  come  into  a  court  of  justice  in  this  unclean  manner  to  re- 
cover it  back.  Procul  O  !  procul  este  profani.  See  Doct.  and  Stud.  fol.  12, 
and  chap.  24. 

3.  The  third  point  is.  Whether  this  matter  can  be  pleaded  ?  It  is 
objected  against  the  defendant  that  he  has  no  remedy  at  law,  but  must  go 
and  seek  it  in  a  court  of  equity ;  I  answer,  we  are  upon  a  mere  point  of 
common  law,  which  must  have  been  a  question  of  law  long  before  courts  of 
equity  exercised  that  jurisdiction  which  we  now  see  them  exercise  ;  a 
jurisdiction  which  never  would  have  swelled  to  that  enormous  bulk  we 
now  see,  if  the  judges  of  the  courts  of  common  law  had  been  anciently  as 
liberal  as  they  had  been  in  later  times  :  to  send  the  defendant  in  this  case 
into  a  court  of  equity,  is  to  say  there  never  was  any  remedy  at  law  against 
such  a  wicked  contract  as  this  is  :  we  all  know  when  the  equity  part  of 
the  Court  of  Chancery  began.  I  should  have  been  extremely  sorry  if  this 
case  had  been  without  remedy  at  common  law.  Est  boni  judicis  ampliare 
jurisdictionem  ;  and  I  say,  est  boni  judicis  ampliare  justitiam  ;  therefore, 
whenever  such  cases  as  this  come  before  a  court  of  law,  it  is  for  the  public 
good  that  the  common  law  should  reach  them  and  give  relief.  I  have 
always  thought  that  formerly  there  was  too  confined  a  way  of  thinking  in 
the  judges  of  the  common  law  courts,  and  that  courts  of  equity  have  risen 
by  the  judges  not  properly  applying  the  principles  of  the  common  law,  but 
being  too  narrowly  governed  by  old  cases  and  maxims,  which  have  too 
much  prevented  the  public  from  having  the  benefit  of  the  common  law.  It 
is  now  objected  as  a  maxim,  that  the  law  will  not  endure  a  fact  in  pais 


COLLINS    V.    BLANTERN.  361 

dehors  a  specialty  to  be  averred  against  it,  and  that  a  deed  cannot  be 
defeated  by  any  thing  less  than  a  deed,  and  a  record  by  a  record,  and  that 
if  there  be  no  consideration  for  a  bond  it  is  a  gift.  I  answer,  that  the  present 
condition  is  for  the  payment  of  a  sum  of  money,  but  that  payment  to  be  made 
was  grounded  upon  a  vicious  consideration,  which  is  not  inconsistent  with 
the  condition  of  the  bond,  but  strikes  at  the  contract  itself  in  such  a  manner 
as  shows,  that,  in  truth,  the  bond  never  had  any  legal  entity,  and  if  it  never 
had  any  being  at  all,  that  the  rule  or  maxim  that  a  deed  must  be  defeated 
by  a  deed  of  equal  strength  doth  not  apply  to  this  case.  The  law  will 
legitimate  the  showing  it  void  ab  initio,  and  this  *can  only  be  done  psjgg-j 
by  pleading.  Nothing  is  due  under  such  a  contract,  then  the  law  L  J 
gives  no  action,  the  debitum  never  existed  ;  as  much  as  if  it  had  been  said 
it  shall  be  void  because  there  is  no  debt ;  but  if  this  wicked  contract  be  not 
pleadable,  it  will  be  good  at  law,  be  sanctified  thereby,  and  have  the  same 
legal  operation  as  a  good  and  honest  contract,  which  seems  to  be  most 
unreasonable  and  unrighteous,  and  therefore,  unless  I  am  chained  down  by 
law  to  reject  this  plea,  I  will  admit  it,  and  let  justice  take  place.  What 
strange  absurdity  would  it  be  for  the  law  to  say  that  this  contract  is  wicked 
and  void,  and  in  the  same  breath  for  the  law  to  say.  You  shall  not  be  per- 
mitted to  plead  the  facts  which  clearly  show  it  to  be  wicked  and  void  !  I 
am  not  for  stirring'  a  single  pebble  of  the  common  law  ;  and  without  alter- 
ing the  least  tittle  thereof,  I  think  it  is  competent,  and  reaches  the  case  before 
us.  For  my  own  part,  I  think  all  the  cases  upon  acts  of  parliament,  Avith 
respect  to  making  bonds,  &c.  void,  do  warrant  the  receiving  this  plea  and 
averment  ;  there  is  no  direction  in  such  acts  of  parliament  given  for  the 
form  and  manner  of  pleading  in  those  cases  ;  the  end  directs  and  sanctifies 
the  means  ;  I  think  there  is  no  difference  between  things  made  void  by  act 
of  parliament,  and  things  void  by  the  common  law;  statute  law  and  common 
law  both  originally  flowed  from  the  same  fountain,  the  legislature  :  I  am 
not  for  giving  any  preference  to  either,  but  if  to  either,  I  should  be  for  giv- 
ing it  to  the  common  law.  If  there  had  ever  been  any  idea  or  imagination, 
that  such  a  contract  as  this  could  have  stood  good  at  common  law,  surely 
the  legislature  would  have  altered  it.  There  has  been  a  distinction  men- 
tioned between  a  bond  being  void  by  statute,  and  at  common  law ;  and  it  is 
said,  that  in  the  first  case  if  it  be  bad,  or  void  in  any  part,  it  is  void  in  toto  ; 
but  that  at  common  law  it  may  be  void _  in  part,  and  good  in  part,t  but  this 
proves  nothing  in  the  present  case.  The  judges  formerly  thought  an  act  of 
parliament  might  be  eluded  if  they  did  not  make  the  whole  void,  if  part  was 
void.  It  is  said,  the  statute  is  like  a  tyrant,  where  he  comes  he  makes  all  void, 
but  the  common  law  is  hke  a  nursing  father,  makes  only  void  that  part  where 
the  fault  is,  and  preserves  the  rest.  1  Mod.  35,  36.  1  Lev.  209.  Hard. 
464.  The  case  of  a  simonical  contract  may  be  reached  by  a  plea  ;  this 
proves  the  contract  in  the  present  case  is  *to  be  avoided  at  common  r^i/^^-i 
law.  The  two  cases  in  Leon.  I  set  one  against  the  other,  and  lay  L  -^ 
no  stress  upon  either  ;  infancy,  coverture,  duress,  &c.,  apply  directly  to  this 
case  ;  the  plea  shows  a  fact,  which,  if  true,  the  bond  never  had  any  legal 
existence  at  all:  as  to  a  bond  being  a  gift,  that  is  to  be  repelled  by  shoAving  it 
was  given  upon  a  bad  consideration  ;  you  may  thereby  repel  the  presump- 

(t)  See  post  in  notis,  p.  169. 


363  smith's     LEADING     CASES. 

tion  of  donation.  It  has  been  objected,  that  the  admission  of  such  plea  as 
the  present  will  strike  at  securities  by  deed  ;  the  answer  is,  that  such  a  plea 
in  the  case  of  infancy,  gaming,  duress,  &c.  &c.,  is  admissible  ;  what  is  the 
plea  of  non  est  factum?  ninety-nine  in  one  hundred  of  them  are  false  ;  why 
then  is  such  a  plea  to  be  received,  and  not  the  present  plea  ?  I  see  no  rea- 
son why.  I  want  no  case  to  warrant  my  opinion,  it  is  enough  for  me  if 
there  be  no  case  against  me,  and  I  think  there  is  not.  In  1  Hen.  7,  14.  16, 
b.  Brian  was  then  the  Chief  Justice,  and  his  opinion  there  is  founded  upon 
what  I  have  now  said :  Brian  says,  "  I  do  not  see  in  any  case  in  the  world 
how  a  man  can  avoid  a  specialty  by  a  bare  matter  of  fact  concerning  the 
same  deed,  if  so  be  that  the  deed  was  good  at  the  commencement ;''''  Cr. 
Eliz.  623,  697.;  Jenk.  108.  Moor,  564,  but  the  present  deed  was  never 
good.  Moor,  564,  is  a  simoniacal  contract  pleaded  to  a  bond,  which  was 
held  a  bad  plea,  because  simony  was  not  then  considered  as  contrary  to  our 
law,  but  at  this  day,  simony  being  against  our  law,  such  a  plea  would  be 
good.  The  case  in  Comb.  121,  is  nothing  but  an  obiter  dictum  of  a  judge, 
to  which  I  pay  very  little  regard. 

4.  As  to  the  fourth  point,  I  think,  the  plea  is  rightly  pleaded,  and  con- 
cludes very  properly  in  saying,  "  And  so  the  said  bond  is  void."  It  seems  to 
me  that  non  est  factum  could  not  have  been  properly  said  at  the  conclusioa 
of  this  plea  after  the  special  matter  before  alleged  ;  non  est  factum  means 
nothing  but  that  "  I  did  not  seal  and  deliver  the  bond  :"  and  why  non  est  fac- 
tum may  be  pleaded  by  a  feme  covert  I  do  not  clearly  see  the  reason,  unless 
the  law  unites  the  husband  and  wife  so  closely,  that  it  considers  them  a.s 
one  and  the  same  person,  so  that  she  without  the  husband  cannot  execute 
the  deed.  If  two  be  jointly  bound,  and  one  only  sued,  he  cannot  plead  non 
est  factum,  but  ought  to  plead  that  another  was  bound  with  him.  5  Rep. 
119,  a.  b.  It  is  fair  to  tell  the  party  what  is  your  defence,  upon  what 
^  -.  *point  you  put  your  case.  I  think  the  right  way  is  to  conclude 
L  -I  the  plea  as  it  is,  ^nd  so  the  said  ivriting  obligatory  is  void,  et  hoc, 
&c.,  and  so  pray  judgment  if  the  plaintiff  ought  to  have  his  action,  &c., 
and  do  not  see  how  he  could  say  non  est  factum,  when  he  sealed  the  deed  ; 
but  supposing  the  plea  might  have  been  more  aptly  concluded,  yet  it  is 
well  enough  upon  a  general  dem.urrer,  as  this  is,t  and  we  are  all  of  opinion 
that  judgment  must  be  for  the  defendant;  that  the  averment  pleaded  is  not 
contradictory,  but  explanatory  of  the  condition ;  that  the  bond  was  void  ab 
initio,  and  never  had  any  existence.  Judgment  for  the  defendant  per 
totam  curiam. 


The  principle  established  in  Collins  reported    9   East,   416,    n.,  it  has  been 

V.  Blantorn,  viz.  that  illegality  may  be  generally  understood  that  an  obligor  is 

pleaded  as  a  defence  to  an  action  on  a  not  restrained  from  pleading  any  matter 

d«ed,  has  been  so  often  recognized,  and  which   shews  that  the  bond  was  given 

is  so  well   settled  as  law,  that  it  would  upon  an  illegal  consideration,  whether 

be  useless  to  enter  upon  any  long  discus-  consistent  or  not  with  the  condition  of 

sion  respecting  it.     "  Since  the  case  of  tlie  bond.''''     Per  Lord  Ellenborough,  L. 

Pole  V.  Harrobin,  E.  23  G.  R.  3,  B.  R.,  C.  J.,  Paxton  v.  Popham,  9  East,  421,  3. 

(t)  By  St.  4  Anne  c;  16. 


COLLINS     V.     BLANTERN. 


363 


This,  it  will  be  remarked,  carries  the 
doctrine  a  step  further  tiian  Collins  v. 
Blantern,  where  the  illegality  averred 
in  the  plea  was  consistent  with  the  con- 
dition.    So  too,  a  covenant  that  lands  on 
which   an   annuity   was   secured   were 
worth  more  than  tiie  annuity,  does  not 
estop  grantor  from  showing  the  reverse. 
Doe  d.  Chandler  v.  Ford,  3  A.  &  E.  654. 
See  furtljer  Prole  v.  Wiggins,  3  Bing. 
N.  C.  23U.     In  Paxton  v.  Popham,  tiie 
condition  of  the  bond  on  which  the  action 
was  brought  stated  that  the  defendants 
had  borrowed  of  the  plaintiffs  a  sum  of 
money,  which  was  to  run  at  responden- 
tia interest  on   the  security  of  certain 
goods  shipped  from  Calcutta  to  Ostend, 
for  the  repayment  of  which  on  tlie  arri- 
val of  the  ship  the  bond  was  conditioned. 
Plea,  that  the  bond  was  given  to  cover 
the  price  of  goods  sold  by  the  plaintiffs 
to  defendants  for  the  purpose  of  an  ille- 
gal tratfic  from  the  East  Indies,  and  that 
the  plaintiffs  knowingly  assisted  in  pre- 
paring the  goods  for  carriage  upon  such 
illegal  voyage.     On  demurrer  the  court 
gave  judgment  for  the  defendants.     Ac- 
cord. Greville  v.  Atkins,  9  B.  &  C.  402. 
But  the   illegality  must  be  made  to  ap- 
pear clearly  and  with  certainty  upon  the 
face  of  the  plea.     Hill  v.  Manchester 
and  Salford  Waterworks  Company,  2  B. 
&  Ad.  552.     Thus,  if  the  statute  of  9 
Anne,    cap.    14,    against    gaming,    be 
pleaded  to  a  bond,  the  plea  must  show  at 
what  game  the  money  was  lost.     Col- 
borne  V.  Stockdale,  1  Str.  493. 

With  respect  to  the  different  species 
of  illegality  pleadable  to  an  action  on  a 
bond.  It  is  impossible  to  do  more  than 
particularize  a  few  of  those  which  have 
actually  come  under  discussion  in  report- 
ed cases.  They  may  be  divided  into  two 
classes,  viz.  1.  Where  the  illegality  ex- 
ists at  common  law ;  and  2.  Where  it 
is  occasioned  by  the  enactments  of  some 
statute.  Under  the  first  class  are  com- 
prehended bonds  the  conditions  of  which 
militate  against  public  policy  :  such,  for 
instance,  as  bonds  in  general  restraint  of 
trade:  the  leading  case  on  which  sub- 
ject, Mitchell  V.  Reynolds,  will  be  found 
in  this  collection,  ^ee  also  Coppock  v. 
Bower,  4  M.  &,  W.  361,  where  an  agree- 
ment to  withdraw  an  election  petition, 
in  consideration  of  money,  was  held  void. 
A  deed  made  in  consideration  of  a 
future  separation  between  husband  and 
wife  is  void,  Hindley  v.  M.  of  West- 
meath,  6  B.  &  C.  200,  though  it  may  be 
otiierwise  where  the  consideration  is  an 


immediate  one.  Jee  v.  Thurlow,  2  B. 
&  C.  541.  In  Jones  v.  Waite,  5  N.  C. 
341,  the  Court  of  Exchequer  Chamber 
aafreed  that  a  husband  cannot  legally 
sell  his  consent  to  a  separation,  though 
there  was  a  difference  of  opinion  on  the 
question,  whetiier  the  facts  stated  upon 
that  record  amounted  to  such  a  sale. 
Bonds  given  on  an  immoral  considera- 
tion, ex.  gr.  to  induce  the  obligee  to  live 
with  the  obligor  in  a  state  of  fornica- 
tion; Walker  v.  Perkins,  3  Burr.  1568; 
1  Bl.  517 ;  though  it  is  otherwise,  where 
the  bond  is  given  in  consideration  of 
past  seduction.  Turner  v.  Vani>.han,  2 
VVils.  339 ;  Nye  v.  Mosely,  6  B.  &  C. 
133.  A  bond  conditioned  to  procure 
subscriptions  for  9,000  shares  in  a  pa- 
tent, which,  by  its  terms,  was  assigna- 
ble to  no  greater  number  than^re  per- 
sons, has  been  void  *for  illegal-  pi (50"] 
ity.  Duvergier  v.  Fellowes,  10  '-  -' 
B.  &i  C.  627;  5  Bing.  248.  In  Pole  v. 
Harrobin,  9  East,  416,  n.,  the  bond  was 
to  secure  money  agreed  to  be  given  for 
the  discharge  of  a  person  unlawfully 
impressed,  and  was  held  void. 

The  illegality  is  equally  fatal  when 
created  by  statute ;  thus  a  bond  will  be 
void  for  contravening  the  provisions  of 
9  Anne,  cap.  14,  sec.  1,  against  gaming; 
see  Colborne  v.  Stockdale,  1  Str.  493; 
Mazzinghi  v.  Stephenson,  1  Camp.  291: 
those  of  5  &  6  Edw.  6,  c.  16,  sees.  2  & 
3,  against  the  sale  of  certain  offices; 
Layng  v.  Paine,  Willes,  571  ;  Godol- 
phin  v.  Tudor,  Salk.  468;  Law  v.  Law, 
3  P.  Wms.  391  :  those  of  the  statutes 
of  31  Eliz.  cap.  6,  and  12  Anne,  stat.  2, 
cap.  12,  against  simony.  See  the  great 
case  of  Ptytche  v.  the  Bishop  of  Lon- 
don, 1  East,  487,  et  notas ;  Fletcher  v. 
Lord  Sondes,  3  Bing.  501;  and  see 
Stat.  7  &  8  G.  4,  c.  "25,  and  9  G.  4,  c. 
94  ;  see  also  the  whole  subject  elabo- 
rately discussed.  Fox  v.  Bishop  of  Ches- 
ter, 6  Bing.  1.  So  a  bond  is  void,  if  it 
infringe  the  provisions  of  the  statutes 
against  usury.  See  the  notes  to  Ferrall 
V.  Shaen,  1  Wms.  Saund.  294.  A  con- 
tract to  perforin  at  an  unlicensed  thea- 
tre is  void.  Levy  v.  Yates,  9  A.  &  E. 
129 ;  and  a  contract  may  be  illegal,  al- 
though not  in  contravention  of  the  spe- 
cific directions  of  a  statute,  if  it  be  op- 
posed to  the  general  policy  and  intent 
thereof,  Staines  v.  Wainwright,  6  Bing. 
N.  C.  174. 

It  is  laid  down  in  some  of  tlie  older 
cases,  that  where  there  are  several  con- 
ditions to  a  bond,  and  any  one  of  them 


364 


SMITHS    LEADING    CASES. 


is  void  by  statute,  the  whole  bond  is 
void,     Norton  v.  Syms,  Moore,  856 ;  S. 
C.   Hobart,  14;    Lee  v.    ColshiU,  Cro. 
Eliz.  599;    Layng   v.    Fayne,    Willes, 
571.     In  Norton  v.  Syms,  a  distinction 
is  taken  in  this  respect  between  cove- 
nants or  conditions  void  by  common  law, 
and  those  that  are  void  by  statute.     It 
is  said,  that  when  some  covenants  in 
an  indenture  are  void  by  common  law, 
and  the  others  good,  a  bond  for  the  per- 
formance of  all   the  covenants  may  be 
good,  so  far  as  respects   the  covenants 
that  are  good.     But  otherwise,  if  any  of 
the  covenants  be  void  by  statute,  there 
the  bond   is  void  in  toto.     See  also  1 
Mod.  :j5,  30  ;  and  per  Buller,  J.,  2  T.  R. 
139 ;  the  expressions  of  the  Lord  Chief 
Justice  in  the  text ;  see  also  Newman 
V,  Newman,  4  iM.  &  S.  63,  and  5  Taunt. 
746.     However,  tiie  expressions  used  in 
the  bocks,  whicli   lay  down  that  if  one 
of  the  conditions  of  a  bqud  be  void  by 
statute,  the  whole  bond  is  void,  must  be 
understood  to  apply  only  to  cases  where 
the  statute  enacts  that  all  instruments 
containing  any  matter  contrary  thereto 
shall  be  void,  ibr  otherwise  the  common 
Jaw  rule  will  apply,  and  that  part  only 
will  be  void  which  contravenes  the  pro- 
visions of  the  statute;  Gaskell  v.  King, 
11   East,  165;  Wigg  v.  Shuttleworth, 
13  East,  87;  How  v.  Synge,   15  East, 
440 ;  provided  the  good  part  be  separa- 
ble from,  and  not  dependent  on,  the  ille- 
gal part.     Bidden  v.  Leader,  1  B.  &  C. 
327;  Iverrison  v.  Cole,  8  East,  231;  see 
Wood  V.  Benson,  2  Tyrwh.  97.     It  is 
indeed  clear  that  if  a  contract  be  made 
on  several  considerations,  one  of  which 
is   illegal,   the    whole  promise  will   be 
void.     Featherstone  v.  Hutchinson,  Cro. 
Eliz.  199;  Waite  v.  Jones,  1  Bino-.  N. 
C.  662 ;  Shackell  v.  Rosier,  2  Bmg.  N. 
C.  646.     And  that  whether  the  illegal- 
ity be  at  common  law,  or  introduced  by 
statute.     Per  Tindall,  C.  J.,  in  Shackell 
v.  Rosier.     The  difference  is,  that  every 
part  of  the   contract  is  induced  and  af- 
fected   by    the    illegal    consideration; 
whereas  in  cases  where  the  considera- 
tion is  tainted  by  no  illegality,  but  some 
of  the  conditions  (if  it  be   a    bond),  or 
promises  (if  it  be  a  contract  of  any  other 
description),  are  illegal,  the  illegality  of 
those  which  are  bad  does  not  communi- 
cate itself  to,  or  contaminate,  those  which 
are  good,  except  where,  in  consequence 
of  some  peculiarity  in  the  contract,  its 
parts  are  inseparable  or  dependent  upon 
one  another.     [See  Mallan  v.  May,  11 


M.  &  W.  653.  669  ;  Green  v.  Price,  13 
Id.  095.] 

It  may  be  here  observed,  that  though 
the  illegality  of  one  of  the  considera- 
tions vitiates  the  contracts,  yet  it  is 
otherwise  if  one  or  more  of  them  be 
merely  void  and  nugatory,  as,  for  in- 
stance, a  promise  by  a  man  to  pay  his 
own  just  debts,  for  then  the  void  consid- 
eration is  a  nullity,  and  the  others  which 
remain  support  the  contract.  See  Jones 
V.  Waite,  5  Bing.  N.  C.  341,  and  the 
authorities  cited  there  by  Ellis  arguendo. 

In  order  that  a  bond  or  other  contract 
may  be  void  for  disobedience  to  a  stat- 
ute, it  is  not  necessary  that  the  statute 
should  contain  words  of  positive  prohi- 
bition. "  The  principle,"  said  Tindal, 
C.  J.,  in  Begnis  v.  Armistead,  10  Bing. 
110,  "is  very  clearly  expressed  by  Holt, 
C.  J.,  in  Bartlett  v.  Vinor,  Carth.  252. 
'  Every  contract  made  for  or  about  any 
matter  or  thing  which  is  prohibited  and 
made  unlawful  by  statute,  is  a  void  con- 
tract, though  the  statute  does  not  men- 
tion that  it  shall  be  so,  but  only  inflicts 
a  penalty  on  the  offender,  because  a  pen- 
alty implies  a  prohibition,  though  there 
are  no  prohibitory  words  in  the  statute.'  " 
Accord.  Ferguson  v.  Norman,  5  Bingh. 
N.  C.  80 ;  see  too  Gas  Light  Com  p.  v. 
Turner,  6  Bing.  N.  C.  324,  5  ib.  6Q6, 
where  it  was  held  that  the  covenants  in 
a  lease,  expressed  to  be  granted  for  a 
purpose  forbidden  by  the  statute,  could 
not  be  enforced,  and  Cope  v.  Rowlands, 
2  C.  M.  &  W.  157,  where  the  court 
also  negatived  an  idea  that  had  existed, 
viz.  that  there  was  a  difference  between 
the  stringency  of  a  statute  for  the  pro- 
tection of  the  subject  and  one  for  the 
protection  of  the  revenue.  [But  see 
Smith  V.  Mawhood,  14  M.  &  W.  452.] 

A  question  sometimes  arises,  whether, 
W'hen  a  statute  points  out  a  particular 
mode  for  the  performance  of  some  act 
therein  commanded,  its  enactments  shall 
be  taken  to  be  imperative  or  only  di- 
rectory ;  in  *the  former  onl}^  r  *]-f)  -i 
of  which  cases  an  act  done  in  '-  -' 

a  different  mode  from  that  pointed  out 
by  the  statute  would  be  void.  In  Pearce 
V.  Morrice,  2  Ad.  &  Ell.  96,  the  follow- 
ing rule  for  distinguishing  between  im- 
perative and  merely  directory  enact- 
ments, is  given  by  Mr.  J.  Taunton,  "  A 
clause  is  directory  where  the  provisions 
contain  mere  matter  of  direction,  and  no 
more ;  but  not  so  when  the}'  are  Ibllowed 
by  words  of  positive  prohibition."  See 
Rex  v.  Gravesend,  3  B.  &  Ad.  240; 


COLLINS     V.     BLANTERN. 


365 


Rex  V.  St.  Greivory,  2  Ad.  &  Ell.  106; 
Brooks  V.  Cock;  3  A.  &  E.  138:  "It  is 
(said  Parke,  B.,  in  Gvvynne  v.  Burnell, 
2  Bing-.  N.  C.  39)  by  no  means  any  im- 
pediment to  construing  a  clause  to  be 
directory,  that  if  it  is  so  construed  there 
is  no  remedy  for  non-compliance  with 
the  direction.  Thus,  the  statutes  which 
direct  the  quarter  sessions  to  be  held  at 
certain  times  in  the  year,  are  construed 
to  be  directory.  Rex  v.  Justices  of  Lei- 
cester, 7  B.  &.  C.  6,  And  the  sessions 
held  at  other  times  are  not  void.  Yet  it 
would  be  difficult  to  say  that  there 
would  be  any  remedy  against  the  jus- 
tices for  appomting  them  on  other  than 
the  times  prescribed  by  the  statute." 

In  Gillow  V.  Lillie,  1  Bing-.  N.  C.  696, 
the  question  was  discussed,  whether  a 
joint  deed  executed  by  two  persons,  one 
of  whom  laboured  under  a  statutory  dis- 
ability, would  be  void  as  against  both,  or 
only  as  against  the  one  rendered  incapa- 
ble by  statute  ;  but  the  point  was  not 
decided,  as  the  court  held  that,  the  deed 
being  several  as  well  as  joint,  the  defen- 
dant's several  liability  was  sufficient  to 
maintain  the  action. 

It  is  laid  down  in  Whelpdale's  case, 
5th  Rep.  119,  a..  Stead  v.  Moon,  Cro. 
Jac.  152,  and  ever  since  held,  that  ille- 
gality must  be  pleaded  in  answer  to  a 
bond  or  other  deed,  and  cannot  be  taken 
advantage  of  under  a  plea  of  non  est 
factum.  [See  Daintree  v.  Hutchinson, 
10  M.  &.  VV.  85.]  See  Mestayer  v. 
Biggs,  4  Tyrwh.  471, 1  C.  M.  &  R.  110, 
where  it  was  held  that  non-compliance 
with  the  provisions  of  the  annuity  act 
must  be  pleaded.  And  so  must  fraud. 
Edwards  v.  Stephen,  1  Tyrwh.  209.  In 
Hill  V.  Manchester  and  Saltbrd  Water- 
works Company,  5  B.  &  Ad.  874,  a  cor- 


poration was  empowered  by  statute  to 
raise  money  by  bonds  under  their  com- 
mon seal,  and  the  act  directed  that  the 
issue  of  all  such  bonds  should  be  sanc- 
tioned by  the  resolution  of  a  meeting  of 
proprietors,  constituted  in  a  particular 
w  ay.  Certain  bonds  were  issued  by  the 
agent,  and  sealed  with  the  seal  of  the 
corporation,  but  not  in  pursuance  of  the 
resolution  of  any  such  meeting  as  the 
statute  directed.  The  court  held  that 
the  bonds  were  void,  and  that  the  non- 
compliance with  the  provisions  of  the 
statute  need  not  be  pleaded,  but  might 
be  given  in  evidence  under  non  est  fac- 
tum. This  case  proceeded  on  the  ground 
that  as  the  corporation  was  the  creature 
of  the  act,  and  had  no  powers  but  those 
which  the  act  gave  it,  a  bond  not  exe- 
cuted in  conformity  to  the  act  was  not  in 
point  of  fsj,ct  executed  by  the  corporation 
at  all.  See  Pontet  v.  Basinstoke  Canal 
Co.,  3  Bingh.  N.  C.  433.  The  illegality 
too  must  be  clearly  shown,  for  it  is  a 
thing  not  to  be  presumed  upon  a  dubious 
state  of  pleadings,  Jones  v.  VVaiie,  5 
Bing.'N.  C.  350. 

With  respect  io  fraud,  that  has  been 
always  considered  pleadable  as  well  as 
illegality,  and  it  is  pleadable  only  and 
cannot  be  given  in  evidence  under  non 
est  factum,  Edwards  v.  Brown,  1  C.  & 
Jerv.  307.  In  a  late  case  at  N.  P.,  Lord 
Abinger  held  that  where  the  party  knows 
the  effect  of  what  he  executes,  proof  that 
it  was  executed  in  consequence  of  pre- 
vious fraud  is  not  evidence  under  a  plea 
of  fraud.  Mason  v.  Ditchbourne,  1  M.  & 
Rob.  460.  A  new  trial  was  moved  for, 
and  the  Court  of  Exchequer  made  the 
rule  absolute  in  order  that  the  question 
might  be  more  distinctly  raised,  ibid,  in 
noiis,  5  C.  M.  &  R.  720,  n. 


In  New  York,  the  strict  English  rules  of  law  have  been  followoci,  as  it 
regards  the  pleadings  to  actions  brought  on  specialties,  and  it  has  been 
decided  in  a  series  of  cases,  that  even  where,  on  the  part  of  the  plaintiff  in  a 
suit  on  a  bond,  there  have  been  fraudulent  misrepresentations  of  the  value 
of  the  consideration  for  which  it  w^as  given,  the  failure  or  deficiency  of  such 
consideration,  cannot  be  taken  advantage  of  as  a  defence  in  a  court  of  law. 
Vrooman  v.  Phelps,  2  Johnson,  177  ;  Dorr  v.  Munsell,  13  Johnson,  430 ; 
Dale  V.  Roosenvelt,  9  Cowen,  307  ;  Stevens  v.  Judson,  4  Wendell,  471.  In 
the  latter  case,  the  court  held,  that  even  if  the  jury  found  for  the  defendant, 
on  a  traverse  of  a  plea,  alleging  that  the  bond  was  given  in  consequence  of 
fraudulent  misrepresentation  by  the  plaintifT,  the  issue  joined  would  be 


366  smith's   leading   cases. 

immaterial,  and  judgment  should  be  entered  against  the  defendant,  notwith- 
standing the  verdict. 

In  Bruce  v.  Lee,  4  Johnson,  310,  it  was  however  determined,  that  ille- 
gality of  consideration  might  be  pleaded  to  a  bond ;  and  in  Van  ValUenburgh 
V.  Rouk,  12  Johnson,  337,  farther  determined,  that  fraud  attending  the  imme- 
diate execution  of  a  specialty,  such,  for  instance,  as  the  substitution  of  one 
instrument  for  another,  might  be  taken  advantage  of  as  a  defence  under  a 
plea  of  non  est  factum,  since  it  rendered  the  bond  void  ab  initio.  This  lat- 
ter decision  of  coarse  does  not  affect  the  principle,  that  illegality  of  conside- 
ration must  be  pleaded  specially,  which  the  courts  of  South  Carolina  recog- 
nised in  Price  v.  Thompson,  2  Bailey,  339,  and  expressly  determined  in 
Commissioners  of  the  Poor  v.  Hanion,  1  Nott  &  M'Cord,  554  ;  S.  P.  United 
States  v.  Sawyer,  1  Gallison,  87. 

The  Supreme  Court  of  Massachusetts,  in  one  of  the  earlier  cases  reported 
in  that  state,  declared  as  a  general  principle,  "  that  where  the  fact  of  fraud 
was  proved  or  admitted,  no  good  reason  could  be  assigned  why  relief  should 
not  be  obtained  in  a  court  of  law,  although  not  always  in  the  same  way  in 
which  it  might  be  obtained  in  a  court  of  equity."  Boynton  v.  Hubbard,  7 
Massachusetts,  119.  Subsequently  this  general  doctrine  was  applied  to  the 
pleadings  in  an  action  brought  upon  a  bond,  and  it  was  held  that  a  plea 
averring  such  bond  to  have  been  obtained  by  fraud,  and  setting  forth  the 
particular  facts  in  which  the  fraud  consisted,  was  a  good  answer  to  the 
declaration.     Hazard  v.  Irwin,  18  Pick.  97. 

It  must  be  observed,  that  the  fraud  in  this  case  did  not  attach  to  the  imme- 
diate execution  of  the  bond,  but  consisted  merely  in  false  statements,  know- 
ingly made,  of  the  quality  and  character  of  certain  machinery  which-  had 
been  sold  by  the  plaintiff",  and  which  formed  the  consideration  of  the  bond  on 
which  the  defendant  had  become  liable  as  surety. 

This  decision  was  admitted  by  the  court,  to  be  in  opposition  to  the  deci- 
sions on  the  same  subject  in  New  York  ;  but  it  would  seem  that  under  the 
revised  statutes  of  that  state,  the  facts  relied  on  by  the  defendant  in  Hazard 
V.  Irwin,  might  have  been  pleaded  as  a  failure  of  consideration,  and  would 
at  all  events  have  been  a  good  defence  pro  tanto.  Case  v.  Boughton,  11 
Wendell,  108. 

The  law  in  Virginia  would  appear  to  be,  that  under  the  plea  of  non  est 
factum,  fraud  affecting  the  consideration  for  which  a  bond  was  given,  can- 
not be  received  in  evidence  ;  Taylor  v.  King,  6  Munford,  358  ;  but  if  such 
fraud  be  specially  pleaded,  as  attaching  to  and  impairing  the  consideration, 
it  will  be  a  good  defence  to  the  extent  to  which  the  value  is  so  impaired. 
Chew  V.  Moffett  and  Wife,  6  Munford,  120  ;  Tomlinson  v.  Mason,  6  Rand. 
169.  It  is  probable  that  this  necessity  for  averring  specially,  all  facts 
showing  fraud  not  immediately  affecting  the  execution  of  an  instrument 
under  seal,  would  be  every  where  recognised  in  the  United  States.  In 
Indiana,  although  fraud  or  failure  of  consideration  have  been  made  by  sta- 
tute a  good  defence  to  an  action  on  a  bond,  it  was,  notwithstanding,  held, 
that  if  the  fraud  relied  on  were  not  such  as  at  common  law  might  be  given 
in  evidence  under  a  plea  of  non  est  factum,  it  must  be  specially  set  forth  in 
order  to  be  valid  as  a  plea.     Huston  v.  Williams,  3  Blackford,  170. 

All  matters  which  would  entitle  the  defendant  in  an  action  brought  on  a 
bond,  to  relief  in  a  court  of  equity,  will  be  a  good  defence  in  a  court  of  law 


MITCHELL     V.     REYNOLDS.  307 

in  Pennsylvania,  where,  through  the  medium  of  legal  forms,  both  systems 
of  jurisprudence  are  administered  by  the  same  tribunals;  and  may  either 
be  specially  pleaded,  or  taken  advantage  of  on  trial,  under  a  plea  of  pay- 
ment, with  notice  of  the  special  matter  to  be  given  in  evidence.  In  Carpen- 
ter V.  Groff,  5  Sergeant  &  Ravvle,  162,  this  doctrine  was  applied  where  the 
bond  had  been  obtained,  through  the  fraudulent  misrepresentation  of  the 
obligee  under  oath  ;  and  in  Solomon  v.  Kimmel,  5  Binney,  232,  to  the  case 
of  a  defective  consideration  in  consequence  of  the  failure  of  title  to  the  land, 
to  pay  for  which  the  bond  was  conditioned. 

Previously  to  this,  in  the  case  of  Baring  v.  Shippen,  2  Binney,  154,  the 
law  had  been  authoritatively  established,  and  want  of  consideration  and  fraud 
on  the  part  of  the  obligee,  attaching  to  the  bond  at  the  time  of  its  delivery, 
were  admitted  under  the  plea  of  payment  with  notice  of  the  special  mat- 
ter relied  on,  as  a  valid  defence  against  an  action  brought  by  a  subsequent 
bona  tide  purchaser  of  the  bond,  who  had  acquired  a  legal  right  to  sue  on  it, 
by  assignment  under  an  act  of  assembly  of  that  state.  There  has  conse- 
quently been  but  little  occasion  in  Pennsylvania,  to  discuss  what  would  be 
good  common  law  pleas  to  a  bond,  and  few  cases  are  to  be  found  on  the  sub- 
ject. Every  thing  which  eq  aequo  et  bono,  should  prevent  the  obligor  from 
recovering,  if  not  capable  of  being  pleaded  under  the  rules  of  the  common 
law,  may  there  be  taken  advantage  of,  either  under  the  plea  of  payment, 
with  notice  of  the  special  matter  to  be  given  in  evidence,  or  by  the  aid  of  a 
special  plea,  which,  if  not  good  in  law,  will  yet,  if  set  forth  with  suflicient 
precision,  be  supported  by  the  courts  on  equitable  grounds.  The  law  of  South 
Carolina  would  appear,  as  it  respects  fraud  or  failure  of  consideration,  to 
be  held  substantially  to  the  same  effect.  1  Bay's  South  Car.  R.  278  ;  2 
Bay,  11. 

H. 


MITCHELL  V.   REYNOLPS.  [*172] 


HILL.  1711.  B.  B. 
[reported    1    p.    WILLIAMS,    181.] 

A  bond  to  promise  to  restrain  oneself  from  trading  in  a  particular  place,  if  made  upon 
reasonable  consideration,  is  good.  Secus,  if  it  be  on  no  reasonable  consideration,  or  to 
restrain  a  man  from  trading  at  all. 

Debt  upon  bond. (a)  The  defendant  prayed  oyer  of  the  condition,  which 
recited,  that  whereas  the  defendant  had  assigned  to  the  plaintifl'a  lease  of  a 
messuage  and  bakehouse  in  Liquorpond  Street,  in  the  parish  of  St.  Andrew's 
Holborn,  for  the  term  of  five  years ;  now  if  the  defendant  should  not  exer- 

(a)  10  Mod.  27.  85.  130.    Fort.  296.    Resolution  of  the  court  of  B.  R. 


368  smith's   leading   cases. 

cise  the  trade  of  a  baker  within- that  parish,  during  the  said  term,  or,  in 
case  he  did,  should  within  three  days  after  proof  thereof  made,  pay  to  the 
plaintiff  the  sum  of  fifty  pounds,  then  the  said  obligation  to  be  void,  Q,uibus 
lectis  et  auditis,  he  pleaded,  that  he  was  a  baker  by  trade,  that  he  had 
served  an  apprenticeship  to  it,  ratione  cujus  the  said  bond  was  void  in  law, 
per  quod  he  did  trade,  prout  ei  bene  licuit.  Whereupon  the  plaintifFdemur- 
red  in  law. 

And  now,  after  this  matter  had  been  several  times  argued  at  the  bar, 
Parker,  J.,  delivered  the  resolution  of  the  court. 

The  general  question  upon  this  record  is,  whether  this  bond,  being  made 
in  restraint  of  trade  be  good  ? 

And  we  are  all  of  opinion,  that  a  special  consideration  being  set  forth  in 
the  condition,  which  shows  it  was  reasonable  for  the  parties  to  enter  into  it, 
the  same  is  good  ;  and  that  the  true  distinction  of  this  case  is^  not  between 
promises  and  bonds,  but  between  contracts  with  and  ivithout  consideration  ; 
and  that  wherever  a  sufficient  consideration  appears  to  make  it  a  proper 
and  a  useful  contract,  and  such  as  cannot  be  set  aside  without  injury  to  a 
fair  contractor,  it  ought  to  be  maintained ;  but  with  this  constant  diversity, 
viz.  where  the  restraint  is  general  not  to  exercise  a  trade  throughout  the 
kingdom,  and  where  it  is  limited  to  a  particular  place  :  for  the  former  of 
these  must  be  void,  being  of  no  benefit  to  either  party,  and  only  oppressive, 
as  shall  be  shown  by  and  by. 

The  resolutions  of  the  books  upon  these  contracts  seeming  to  disagree, 
I  will  endeavour  to  state  the  law  upon  this  head,  and  to  reconcile  the 
jarring  opinions  ;  in  order  whereunto,  I  shall  proceed  in  the  following 
method. 

1st.  Give  a  general  view  of  the  cases  relating  to  the  restraint  of  trade. 

2diy.  Make  some  observations  from  them. 

3dly.  Show  the  reasons  of  the  difTerences  which  are  to  be  found  in  these 
cases ;  and 

4thly.  Apply  the  whole  to  the  case  at  bar. 

As  to  the  cases,  they  are  either  first,  of  involuntary  restraints  against,  or 
without,  a  man's  own  consent ;  or,  secondly,  of  voluntary  restraints  by 
agreement  of  the  parties. 

Involuntary  restraints  may  be  reduced  under  these  heads. 

1st.  Grants  or  charters  from  the  crown. 

2ndly.  Customs. 

3rdly.  By-laws. 

Grants  or  charters  from  the  crown  may  be, 

1st.  A  new  charter  of  incorporation  to  trade  generally,  exclusive  of  all 
others,  and  this  is  void.     8  Co.  121. 

2ndly.  A  grant  to  particular  persons  for  the  sole  exercise  of  any  known 
trade ;  and  this  is  void,  because  it  is  a  monopoly,  and  against  the  policy  of 
the  common  law,  and  contrary  to  Magna  Charta.     11  Co.  84. 

3dly.  A  grant  of  the  sole  use  of  a  new  invented  art,  and  this  is  good, 
being  indulged  for  the  encouragement  of  ingenuity  ;  but  this  is  tied  up  by 
the  statute  of  21  Jac.  1,  cap.  3,  s,  6,  to  the  term  of  fourteen  years  ;  for  after 
that  time  it  is  presumed  to  be  a  known  trade,  and  to  have  spread  itself 
among  the  people. (-j-) 

(t)  See  the  further  regulations  introduced  by  st.  5  &  6  W.  4,  c.  83. 


MITCHELL     V.     REYNOLDS. 


369 


Restraints  by  custom  are  of  three  sorts, 

1st  Such  as  are  for  the  benefit  of  some  particular  persons,  who  are 
alleged  to  use  a  trade  for  the  advantage  of  a  *community,  which  .^^^g, 
are  good.  8  Co.  125.  Cro.  Eliz.  803.  1  Leon.  143.  Mich.  22  L  J 
H.  6.  14.     2  Bulst.  195.     1  Roll.  Abr.  561. 

2ndly  For  the  benefit  of  a  community  of  persons  who  are  not  alleged, 
but  supposed  to  use  the  trade,  in  order  to  exclude  foreigners. (t)  Dyer 
279,b.     W.Jones,  162.     8  Co.  121.     11  Co.  52.     Carter,  68.  114,  held 

good.  ,      .  •     1        1 

3dly.  A  custom  may  be  good  to  restrain  a  trade  m  a  particular  place, 
though  none  are  either  supposed  or  alleged  to  use  it ;  as  m  the  case  of 
Rippon.     Register,  105,  106. 

Restraints  of  trade  by  by-laws  are  these  several  ways. 
1st  To  exclude  foreigners  ;  and  this  is  good,  if  only  to  enforce  a  prece- 
dent  custom  by  a  p.enaky.  Carter,  68.  114.  8  Co.  I25.{a)  But  where 
there  is  no  precedent  custom,  such  by-law  is  void.  1  Roll.  Abr.  364.  Hob. 
210  1  Bulst.  11.  3  Keb.  808.(/>)  But  the  case  in  Keble  is  misre- 
ported  ;  for  there  the  defendants  did  not  plead  a  custom  to  exclude  foreigners, 
but  only  generally  to  make  by-laws,  which  was  the  ground  of  the  resolution 

in  that  case.  •  i       txt        r-^f 

2dly.  All  by-laws  made  to  cramp  trade  in  general,  are  void.     Moor,  o7b. 

2  Inst.  47.      1  Bulst.  11. 

.Sdly.  By-laws  made  to  restain  trade,  in  order  to  the  better  government 
and  regulation  of  it,  are  good,  in  some  cases,(c)  viz.  if  they  are  for  the  bene- 
fit of  the  place,  and  to  avoid  public  inconveniences,  nuisances,  &c.  Or  for 
the  advantage  of  the  trade,  and  improvement  of  the  commodity.  Sid.  284. 
Raym.  288.  2  Keb.  27.  873,  and  5  Co.  62,  b,  which  last  is  upon  the  by- 
law for  bringing  all  broad-cloth  to  Blackwell-Hall,  there  to  be  viewed  and 
marked,  and"  to  pay  a  penny  per  piece  for  marking:  this  was  held  a  rea- 
sonable by-law;  and  indeed  it  seems  to  be  only  a  fixing  of  the  market; 
and  one  end  of  all  markets  is,  that  the  commodity  may  be  viewed  ;  but 
then  they  must  not  make  people  pay  unreasonably  for  the  liberty  of  trading 

there.  .   . 

In  2  Keb.  309,  the  case  is  upon  a  by-law  for  restraining  silk-throwsters 
from  using  more  than  such  a  certain  number  of  spindles,  and  there  the 
by-law  woaU  have  been  good,  if  llie  reasons  given  for  it  had  been  true. 
'  Voluntary  restraints  by  agreement  of  the  parties  are  either, 

1st.  General,  or 

2ndly.  Particular  as  to  places  or  persons. 

♦General  restraints  are  all  void,  whether  by   bond,  covenant,  p^j^^n 
or  promise,  &c.,  with   or  without  consideration,  and  whether  it  L 
be    of  the   party's   own  trade,  or  not.     Cro.   Jac.    596.     2   Bulst.    136. 
Allen,  67. 

Particular  restraints  are  either,  1st,  without  consideration,  all  which  are 

(t)  Restraints   of  this  kind,  whether  by  custom  or  by-law  are  now  abolished  in  all 
boroQfflis  by  st.  5  &.  6  W.  4,  c.  76,  s.  14.     This  act  does  not  atTect  London. 

(a)  Volley  v.  Idle,  4  Burr.  1951.  ,     o  t,         io-r? 

(b)  Vide  Harrison  v.  Godman,  1  Burr.  12.     Ilcskcth  v,  Braddock,  3  Burr.  l«ob. 

(c)  Wanncl  v.  Chamber  of  the  City  of  London,  1  Stra.  675.     The  King  v.  Harrison,  3 
Burr.  \3-22.     Pierce  v.  Bartrum,  Cowp.  269. 

Vol.  I.— 24 


370  smith's  leading  cases. 

void  by  what  sort  of  contract  soever  created.  2  H.  5.  5.  Moor,  115.  242. 
2  Leon.  210.  Cro.  Eliz.  872.  Noy,  98.  Owen,  143.  2  Keb.  377. 
March,  191.     Show.  2,  (not  well  reported.)     2  Saund.  155. 

Or  2ndly,  particular  restraints  are  with  consideration. 

Where  a  contract  for  restraint  of  trade  appears  to  be  made  upon  a  good 
and  adequate  consideration,  so  as  to  make  it  a  proper  and  useful  contract, 
it  is  good.  2  Bulst.  136.  Rogers  v.  Parry.  Though  that  case  is  wrongly 
reported,  as  appears  by  the  roll  which  I  have  caused  to  be  searched,  it  is  B. 
R.  Trin.  11  Jac.  1,  Rot.  223.  And  the  resolution  of  the  judges  was  not 
grounded  upon  its  being  a  particular  restraint,  but  upon  its  being  a  particu- 
lar restraint  with  a  consideration,  and  the  stress  laid  on  the  words,  as  the 
case  is  here,  though,  as  they  stand  in  the  book,  they  do  not  seem  material. 
Noy,  98.  W.  Jones,  13.  Cro.  Jac.  596.  In  that  case,  all  the  reasons  are 
clearly  stated,  and,  indeed,  all  the  books,  when  carefully  examined,  seem  to 
concur  in  the  distinction  of  restraints  general,  and  restraints  particular,  and 
with  or  without  consideration,  which  stands  upon  very  good  foundation  ; 
Volenti  non  fit  injuria  :  a  man  may,  upon  a  valuable  consideration,  by  his 
own  consent,  and  for  his  own  profit,  give  over  his  trade  ;  and  part  with  it 
to  another  in  a  particular  place. 

Palm.  172.  Bragg  v.  Sianner.  The  entering  upon  the  trade,  and  not 
whether  the  right  of  action  accrued  by  bond,  promise  or  covenant,  was  the 
consideration  in  that  case. 

Vide  March's  Rep.  77,  but  more  particularly  Allen's  67,  where  there  is 
a  very  remarkable  case,  wliich  lays  down  this  distinction,  and  puts  it  upon 
the  consideration  and  reason  of  the  thing. 

vSecondly,  I  come  now  to  make  some  observations  that  may  be  useful  in 
the  understanding  of  these  cases.     And  they  are, 

1st.  That  to  obtain  the  sole  exercise  of  any  known  trade  throughout 
England,  is  a  complete  monopoly,  and  against  the  policy  of  the  law. 

*2dly.  That  when  restrained  to  particular  places  or  persons,  (if 
L'    ^^J  lawfully  and  fairly  obtained,)  the  same  is  not  monopoly. 

3rdly.  That  since  these  restraints  may  be  by  custom,  and  custom  must 
have  a  good  foundation,  therefore  the  thing  is  not  absolutely,  and  in  itself, 
unlawful. 

4thly.  That  it  is  lawful  upon  a  good  consideration  for  a  man  to  part  with 
his  trade. 

5thly.  That  since  actions  upon  the  case  are  actions  injuriarum,  it  Has 
been  ahvays  held,  that  such  actions  will  lie  for  a  man's  using  a  trade  con- 
trary to  custom,  or  his  own  agreement  ;-for  there  he  uses  it  inJurioKsIy. 

Cthly.  That  where  the  law  allows  a  restraint  of  trade,  it  is  not  unlawful 
to  enforce  it  with  a  penalty. 

7thly.  That  no  man  can  contract  not  to  use  his  trade  at  all. 

8ihly.  That  a  particular  restraint  is  not  good  without  just  reason  and 
consideration. 

Thirdly,  I  propose  to  give  the  reasons  of  the  difTerences  which  we  find 
in  the  cases  ;  and  this  I  will  do, 

1st.  With  respect  to  involuntary  restraints,  and 

2ndly.  With  regard  to  such  restraints  as  are  voluntary. 

As  t.o  involuntary  restraints,  the  first  reason  why  such  of  these,  as  are 
created  by  grants  and  charters  from  the  crown  and  by-laws,  generally,  are 


MITCHELL     V.     REYNOLDS.  371 

void,  is  drawn  from  the  encouragement  which  the  law  gives  to  trade  and 
honest  industry,  and  that  they  are  contrary  to  the  liberty  of  the  subject. 

2ndly.  Another  reason  is  drawn  from  the  Magna  Charta,  which  is  in- 
fringedby  these  acts  of  power;  that  statute  says,  nuUus  liber  homo,  &c., 
disseisetur  de  libero  tenemenlo  vel  libertatibus,  vel  liberis  consuetudinibus 
suis,  &c.,and  these  words  have  been  always  taken  to  extend  to  freedom  of 
trade. 

But  none  of  the  cases  of  customs,  by-laws  to  enforce  these  customs,  and 
patents  for  the  sole  use  of  a  new  invented  art,  are  within  any  of  these  rea- 
sons ;  for  here  no  man  is  abridged  in  his  liberty,  or  disseised  of  his  freehold  ; 
a  custom  is  lex  loci,  and  foreigners  have  no  pretence  of  right  in  a  particular 
society,  exempt  from  the  laws  of  that  society  ;  and  as  to  new  invented  arts, 
nobody  can  be  said  to  have  a  right  to  that  which  was  not  in  being  before  ; 
and  therefore  it  is  but  a  reasonable  reward  to  ingenuity  and  uncommon 
industry. 

*I  shall  show  the  reason  of  the  differences  in  the  cases  of  volun-  r-,.,,^fl-| 
tary  restraint.  ^ 

1st.  Negatively. 

2ndly.  Affirmatively. 

I.  Negatively  ,•  The  true  reason  of  the  disallowance  of  these  in  any 
case,  is  never  drawn  from  Magna  Charta  ;  for  a  man  may,  voluntarily,  and 
by  his  own  act,  put  himself  out  of  the  possession  of  his  freehold  ;  he  may 
sell  it,  or  give  it  away  at  his  pleasure. 

2ndly.  Neither  is  it  a  reason  against  them,  that  they  are  contrary  to  the 
liberty  of  the  subject ;  for  a  man  may,  by  his  own  consent,  for  a  valuable 
consideration,  part  with  his  liberty  ;  as  in  the  case  of  a  covenant  not  to 
erect  a  mill  upon  his  own  lands.  J.  Jones,  13  Mich.  4  Ed.  3,  57.  And 
when  any  of  these  are  at  any  time  mentioned  as  reasons  upon  the  head  of 
voluntary  restraints,  they  are  to  be  taken  only  as  general  instances  of  the 
favour  and  indulgence  of  the  law  to  trade  and  industry. 

3rdly.  It  is  not  a  reason  against  them,  that  they  are  against  law,  I  mean, 
in  a  proper  sense,  for  in  an  improper  sense  they  are. 

All  the  instances  of  conditions  against  law  in  a  proper  sense,  are  redu- 
cible under  one  of  these  heads. 

1st.  Either  to  do  something  that  is  malum  in  se,  or  malum  prohibitum. 
1  Inst.  206. 

2ndly.  To  omit  the  doing  of  something  that  is  a  duty.  Palm.  172.  Hob. 
12.  Norton  v.  Sims. 

3rdly.  To  encourage  such  crimes  and  omissions.  Fitzherb.  tit.  Obliga- 
tion, 13.     Bro.  tit.  Obligation,  34.     D3'er,  118. 

Such  conditions  as  these,  the  law  will  always,  and  without  any  regard  to 
circumstances,  defeat,  being  concerned  to  remove  all  temptations  and  induce- 
ments to  those  crimes ;  and  therefore,  as  in  1  Inst.  206,  a  feoffment  shall 
be  absolute  for  an  unlawful  condition,  and  a  bond  void.  But  from  hence  I 
would  infer, 

■  1st.  That  where  there  may  be  a  way  found  out  to  perform  the  condition, 
without  a  breach  of  the  law,  it  shall  be  good.  Hob.  12.  Cro.  Car.  22. 
Perk.  228. 

2ndly.  That  all  things  prohibited  by  law  may  be  restrained  by  condition  ; 
and  therefore  these  particular  restraints  of  trade,  not  being  against  law,  in 


372  smith's   leading   cases. 

r^.-,^^-,  a  proper  sense,  *as  being  neither  malam  inse,  nor  malam  prohibita, 
'-  -*  and  the  law  allowing  them  in  some  instances,  as  in  those  of  cus- 
toms and  assumpsits,  they  may  be  restrained  by  condition. 

II.  Affirmatively ;  the  true  reasons  of  the  distinction  upon  which  the 
judgments  in  these  cases  of  voluntary  restraints  are  founded,  are,  1st,  the 
mischief  which  may  arise  from  them,  1st.  to  the  party,  by  the  loss  of  his 
livelihood,  and  the  subsistence  of  his  family;  2ndly,  to  the  public,  by  de- 
priving it  of  a  useful  member. 

Another  reason  is,  the  great  abuses  these  voluntary  restraints  are  liable 
to  ;  as  for  instance,  from  corporations,  who  Ave  re  perpetually  labouring  for 
exclusive  advantages  in  trade,  and  to  reduce  it  into  as  few  hands  as  possible  ; 
as  likewise  from  masters,  who  are  apt  to  give  their  apprentices  much  vexa- 
tion on  this  account,  and  to  use  many  indirect  practices  to  procure  such 
bonds  from  them,  lest  they  should  prejudice  them  in  their  custom,  when 
they  come  to  set  up  for  themselves. 

3rdly.  Because,  in  a  great  many  instances,  they  can  be  of  no  use  to  the 
obligee;  Avhich  holds  in  all  cases  of  general  restraint  throughout  England  ; 
for  what  does  it  signify'  to  a  tradesman  in  Londjon,  what  another  does  at 
l^ewcastle  ?  and  surely  it  would  be  unreasonable  to  fix  a  certain  loss  on 
one  side,  without  any  benefit  to  the  other.  The  Roman  law  would  not 
enforce  such  contracts  by  an  action.  See  Puff.,  lib.  5,  c.  2,  sect.  3.  21  H.. 
7.20. 

4thl3'.  The  fourth  reason  is  in  favour  of  these  contracts,  and  is  that  there 
may  happen  instances  wherein  they  may  be  useful  and  beneficial,  as  to 
prevent  a  town  from  being  overstocked  with  any  particular  trade  ;  or  in 
case  of  an  old  man,  who  finding  himself  under  such  circumstances  of  body 
or  mind,  as  that  he  is  likel}^  to  be  a  loser  by  continuing  his  trade,  in  this 
case  it  will  be  belter  for  him  to  part  with  it  for  a  consideration,  that  by 
selling  his  custom  he  may  procure  to  himself  a  livelihood,  which  he  might 
probably  have  lost,  by  trading  longer. 

5thly.  The  law  is  not  so  unreasonable  as  to  set  aside  a  man's  own 
agreement  for  fear  of  an  uncertain  injury  to  him,  and  fix  a  certain  damage 
upon  another;  as  it  .must  do,  if  contracts  with  a  consideration  were  made 
void.  Barrow  V.  Wood,  March  Rep.  77.  Mich.  7  Ed.  3.  65.  Allen,  67. 
8  Co.  12i; 

^  -^  *But  here  it  may  be  made  a  question,  that  suppose  it  does  not 
L  J  appear  whether  or  no  the  contract  be  made  upon  good  considera- 
tion, or  be  merel}'  injurious  and  oppressive,  what  shall  be  done  in  this 
case  ? 

Resp.  I  do  not  see  why  that  should  not  be  shown  by  pleading  ;  though 
certainly  the  law  might  be  settled  either  way  without  prejudice  ;  but  as  it 
now  stands  the  rule  js,  that  wherever  such  contract  stat  indiflerenter,  and, 
for  aught  appears,  may  be  either  good  or  bad,  the  law  presumes  it  prima 
facie  to  be  bad,  and  that  for  these  reasons  : 

1st.  In  favour  of  trade  and  honest  industry. 

2ndly.  For  that  there  plainly  appears  a  mischief,  but  the  benefit  (if  any) 
can  be  only  presumed  ;  and  in  that  case,  the  presumptive  benefit  shall  be 
overborne  by  the  apparent  mischief. 

3rdly.-  For  that  the  mischief  (as  I  have  before  shown)  is  not  only  private, 
but  public. 


MITCHELL     V.     REYNOLDS.  373 

4thly.  There  is  a  sort  of  presumption,  that  it  is  not  of  any  benefit  to 
the  obligee  himself,  because,  it  being  a  general  miscliief  to  the  public, 
every  body  is  affected  thereby ;  for  it  is  to  be  observed,  that  though  it  be 
not  shown  to  be  the  party's  trade  or  livelihood,  or  that  he  had  no  estate 
to  subsist  on,  yet  all  the  books  condemn  those  bonds,  on  that  reason,  viz., 
as  taking  away  the  obligor's  livelihood,  which  proves  that  the  law  presumes 
it ;  and  this  presumption  answers  all  the  difficulties  that  are  to  be  found  in 
the  books. 

As,  1st,  That  all  contracts,  where  there  is  a  bare  restraint  of  trade  and  no 
more,  must  be  void  ;  but  this  taking  place,  only  where  the  consideration  is 
not  shown,  can  be  no  reason  why,  in  cases  where  the  special  matter  appears, 
so  as  to  make  it  a  reasonable  and  useful  contract,  it  should  not  be  good;  for 
these  the  presumption  is  excluded  and  therefore  the  courts  of  justice  will 
enforce  these  latter  contracts,  but  not  the  former. 

2ndly.  It  answers  the  objection,  that  a  bond  does  not  want  a  considera- 
tion, but  is  a  perfect  contract  without  it  ;  for  the  law  allows  no  action  on  a 
nudum  pactum,  but  every  contract  must  have  a  consideration,  either 
expressed,  as  in  assiimpsits,  or  implied,  as  in  bonds  and  covenants,  but 
these  latter,  though  ihey  are  perfect  as  to  the  form,  yet  may  be  void  as  to 
the  matter  ;  as  in  a  covenant  to  stand  seised,  *which  is  void  with-  p*i«Q-| 
out  a  consideration,  though  it  be  a  complete  and  perfect  deed.  L 

3rdly.  It  shows  why  a  contract  not  to  trade  in  any  part  of  England, 
though  with  consideration,  is  void  ;  for  there  is  something  more  than  a  pre- 
sumption against  it,  because  it  can  never  be  useful  to  any  man  to  restrain 
another  from  trading  in  all  places,  though  it  may  be  to  restrain  him  from 
trading  in  some,  unless  he  intends  a  monopoly,  which  is  a  crime. 

4thly.  This  shows  why  promises  in  restraint  of  trade  have  been  held 
good  ;  for  in  those  contracts,  it  is  always  necessary  to  show  the  considera- 
tion, so  that  the  presumption  of  injury  could  not  take  place,  but  it  must  be 
governed  by  the  special  matter  shown.  And  it  also  accounts  not  only  for 
all  the  resolutions,  but  even  all  the  expressions  that  are  used  in  our  books 
in  these  cases  ;  it  at  least  excuses  the  vehemence  of  Judge  Hall  in  2  H,  5,  ~ 
fol.  quinto;  for  suppose  (as  that  case  seems  to  be)  a  poor  weaver,  having 
just  met  with  a  great  loss,  should,  in  a  fit  of  passion  and  concern,  be 
exclaiming  against  his  trade,  and  declare,  that  he  would  not  follow  it  any 
more,  &c.,  at  which  instant,  some  designing  fellow  should  work  him  up  to 
such  a  pitch,  as,  fot  a  trifling  matter,  to  give  a  bond  not  to  work  at  it  again, 
and  afterwards,  when  the  necessilies  of  his  family  and  the  cries  of  his  chil- 
dren send  him  to  the  loom,  should  take  advantage  of  the  forfeiture,  and  put 
the  bond  in  suit  ;  I  must  own,  I  think  this  such  a  piece  of  villany,  as  is 
hard  to  find  a  name  for;  and  therefore  cannot  but  approve  of  the  indigna- 
tion that  judge  expressed,  though  not  his  manner  of  expressing  it.  Surely 
it  is  not  fitting  that  such  unreasonable  mischievous  contracts  should  be 
countenanced,  much  less  executed  by  a  court  of  justice. 

As  to  the  general  indefinite  distinction  made  between  bonds  and  promises 
in  this  case,  it  is  in  plain  words  this,  that  the  agreement  itself  is  good,  but 
when  it  is  reduced  into  the  form  of  a  bond,  it  immediately  becomes  void  ; 
but  for  what  reason  see  3  Lev.  241.  Now,  a  bond  may  be  considered  two 
ways,  either  as  a  security,  or  as  a  compensation  ;  and, 


374  smith's   leading   cases. 

1st.  Why  should  it  be  void  as  a  security  ?  Can  a  man  be  bound  too  fast 
from  doing  an  injury  ?  which  I  have  proved  the  using  of  a  trade  contrary 
to  custom  or  promise,  to  be. 

2ndly.  Why  should  it  be  void  as  a  compensation  ?  Is  there  any  reason 
r*lRnl  '^'^y  P<ii"ties  of  full  age,  and  capable  of  contracting,  may  not  settle 
L  -'  the  quantum  of  damages  *for  such  an  injury?  Bract.,  lib.  3,  c. 
2,  s.  4. 

It  would  be  very  strange,  that  the  law  of  England,  («)  delights  so  much 
in  certainty,  should  make  a  contract  void,  when  reduced  to  certainty,  which 
was  good,  when  loose  and  uncertain  ;  the  cases  in  March's  Rep.  77,  191, 
and  also  Show.  2,  are  but  indifferently  reported,  and  not  warranted  by  the 
authorities  they  build  upon. 

1st  Object.  In  a  bond  the  whole  penalty  is  to  be  recovered,  but  in 
assumpsit  only  the  damages. 

Resp.  This  objection  holds  equally  against  all  bonds  whatsoever. 

2nd  Objection.  Another  objection  was,  that  this  is  like  the  case  of  an 
infant,  who  may  make  a  promise  but  not  a  bond,  or  that  of  a  sheriff'  who 
cannot  take  a  bond  for  fees. 

Resp.  The  case  of  an  infant  stands  on  another  reason,  viz.,  a  general 
disability  to  make  a  deed,  but  here  both  parties  are  capable  ;  neither  is  it 
the  nature  of  the  bond,  but  merely  the  incapacity  of  the  infant,  which  makes 
a  bond  by  him  void,  since  there  a  surety  would  be  liable ;  but  it  is  otherwise 
here. 

Also  the  case  of  a  sheriff^  is  very  different ;  for  at  common  law  he  could 
take  nothing  for  doing  his  duty,  but  the  statute  has  given  him  certain  fees: 
but  he  can  neither  take  more,  nor  a  chance  for  more,  than  that  allows 
him. 

3d  Object.  It  was  further  objected,  that  a  promise  is  good,  and  a  bond 
void,  because  ihe  former  leaves  the  matter  more  at  large  to  be  tried  by  a 
jurj'  ;  but  what  is  there  to  be  tried  by  a  jury  in  this  case  ? 

Resp.  1st.  It  is  to  be  tried  whether  upon  consideration  of  the  circumstances 
the  contract  be  good  or  not  ?  and  that  is  matter  of  law,  not  fit  for  a  jury  to 
determine. 

2dly.  It  is  to  ascertain  the  damages  ;  but  cui  bono  (say  they)  should  that 
be  done  ?     Is  it  for  the  benefit  of  the  obligor  ? 

Resp.  Certainly  it  may  be  necessary  on  that  account,  for  these  reasons  : — 

1st.  A  bond  is  a  more  favourable  contract  for  him  than  a  promise  ;  for 
the  penalty  is  a  repurchase  of  his  trade  ascertained  before-hand, (6)  and 
r*ifiiT  °^  payment  thereof  he  *shall  have  it  again  ;  he  may  rather 
L  J  choose  to  be  bound  not  to  do  it  under  a  penalty,  than  not  to  do  it 
at  all. 

2dly.  However  it  be,  it  is  his  own  act. 

3dly.  He  can  suffer  only  by  his  knavery,  and  surely  courts  of  justice 
are  not  concerned  lest  a  man  should  pay  too  dear  for  being  a  knave. 

4lhly.  Restraints  by  custom  may  (as  I  have  proved)  be  enforced  with 
penalties  which  are  imposed  without   the  party's   consent ;  nay,  by  the 

(rt)  Post,  Grantham  V.  Gordon,  614. 

(//)  Sed  vide  Hardy  v.  Martin,  1  Bro.  Cha.  Rep.  419,  note. 


MITCHELL     V.     REYNOLDS. 


375 


injured  party,  without  the  concurrence  of  the  other;  and  if  so,  then  a  for- 
tiori he  may  bind  liimself  by  a  penaUy. 

Object.  It  may  perhaps  be  objected,  that  a  false  recital  of  a  consideration 
in  the  condition  may  subject  a  man  to  an  inconvenience,  which  the  law  so 
much  labours  to  prevent. 

Resp.  But  this  is  no  more  to  be  presumed  than  false  testimony,'and  in 
such  a  case  I  should  think  the  defendant  might  aver  against  it;  for  though 
the  rule  be,  that  a  man  is  estopped  from  averring  against  any  thing  in  his 
-own  deed,  yet  that  is,  supposing  it  to  be  his  deed ;  for  where  it  is  void,  it  is 
otherwise,  as  in  the  case  of  a  usurious  contract.! 

The  application  of  this  to  the  case  at  bar  is  very  plain.  Here  the  parti- 
cular circumstances  and  consideration  are  set  forth,  upon  which  the  court  is 
to  judge,  wdiether  it  be  a  reasonable  and  useful  contract. 

The  plaintiff  took  a  baker's  house,  and  the  question  is,  whether  he  or  the 
defendant  shall  have  the  trade  of  this  neighbourhood  ?  The  concern  of  the 
public  is  equal  on  both  sides. 

Whafmakes  this  the  more  reasonable  is,  that  the  restraint  is  exactly  pro- 
portioned to  the  consideration,  viz.,  the  term  of  five  years. 

To  conclude.  In  all  restraints  of  trade,  where  nothing  more  appears,  the 
law  presumes  them  bad :  but  if  the  circumstances  are  set  forth,  that  pre- 
sumption is  excluded,  and  the  court  is  to  judge  of  those  circumstances,  and 
determine  accordingly  ;  and  if  upon  them  it  appears  to  be  a  just  and  honest 
contract,  it  ought  to  be  maintained. 

For  these  reasons,  we  are  of  opinion,  that  the  plaintiff  ought  to  have 
judgment. 


"The  general  rule  is,  that  all  re- 
straints of  trade  which  the  law  so  much 
favours,  if  nothing  more  appear,  are 
bad.  This  is  the  rule  which  is  laid 
r  *mo  1  down  *in  the  famous  case  of 
L  "^    J    Mitchell  V.  Reynolds,  which 

is  well  reported  in  1  P,  Wms.  181,  in 
which  Lord  Macclesfield  took  such  great 
pains,  and  in  which  all  the  cases  and 
arguments  in  relation  to  this  matter  are 
thoroughly  weighed  and  considered :  but 
to  tiiis  general  rule  there  are  some  ex- 
ceptions; as,  first,  if  the  restraint  be 
only  particular  in  respect  to  the  time  or 
place,  and  there  be  a  good  consideration 
given  to  the  party  restrained.  A  con- 
tract or  agreement  upon  such  considera- 
tion, so  restraining  a  particular  person, 
may  be  good  and  valid  in  law,  notwith- 
standing the  general  rule,  and  this  was 
the  very  case  of  Mitcliell  v.  Reynolds." 
Per  Wiiles,  C.  J.,  in  the  Master,  &c.  of 
Gunmakers  v.  Fell,  Wiiles,  388.     Sec 


Stuart  V.  Nicholson,  3  Bing.  N.  C.  113; 
[and  Mallan  v.  May,  11  M.  &  W.  653. 
605.]  The  same  principles  are  recognised 
in  tJie  judgment  of  the  court  in  Gale  v. 
Reed,  8  East,  83,  in  a  variety  of  cases, 
both  previous  and  subsequent,  particu- 
larly in  Chesman  v.  Nainby,  2  Str. 
7.39;  3  Bro.  P.  C.  349,  which  received 
the  successive  decisions  of  the  King's 
Bench,  Common  Pleas,  and  House  of 
Lords.  The  reader  will  find  all  the 
authorities  collected  in  Young  v.  Tim- 
mins,  1  Tyrwh.  226,  1  C.  &  J.  331,  and 
the  rule  to  be  collected  from  them  all 
is  stated  in  that  case  by  Vaughaii,  B.,  p. 
241,  viz.  "  any  agreement  by  bond  or 
otherwise  in  general  restraint  of  trade, 
is  illegal  and  void.  But  such  a  security 
given  to  effect  a  partial  restraint  of 
trade  may  be  good  or  bad,  according  as 
the  consideration  is  adequate  or  inade- 
quate." In  order,  therefore,  that  a  con- 
tract in  restraint  of  trade  may  be  valid 


t  Accord.  Collins  v.  Blantcrn,  ante  p.  154,  et  notas. 


376 


SMITHS    LEADING    CASES. 


at  law  (for  even  then  equity  is  loath  to 
enforce  it  specifically,  if  the  terms  be  at 
all  har-d,  or  even  complex,  Kiniberly  v. 
Jennings,  1  Sim.  340,  though  in  some 
cases  it  will  do  so,  perV.  C,  Kemble  v. 
Kean,  6  Sim.  335,)  the  restraint  must  be 
first,  partial;  secondly,  upon  an  adequate, 
or  as  the  rule  now  seems  to  be,  not  on 
a  mere  colourable  consideration ;  and 
there  is  a  third  requisite,  namely,  that  it 
should  be  reasonable,  the  meaning  of 
which  shall  be  presently  considered. 
— First,  the  restraint  must  be  jiartial. 
It  was  decided  so  early  as  the  reign  of 
Henry  V.  tliat  a  contract  imposing  a  gen- 
eral restraint  on  trade  is  void.  Indeed. 
Hall,  J.,  flew  into  a  passion  at  the  very 
sight  of  a  bond  imposing  such  a  condi- 
tion, and  exclaimed,  with  more  fervour 
than  decency:  "A  ma  intent  purres 
avoir  demurre  sur  luy  que  obligation  est 
void  eo  que  le  condition  est  encounter 
conmion  ley,  et  per  Dieu,  si  le  plaintilT 
fut  icy,  il  irra  al  prison  tanq  il  ut  fait 
fine  al  Roy."  "The  law,"  said  Best,  J., 
in  Homer  v.  Ashford,  3  Bing.  329,  "will 
not  permit  any  one  to  restrain  a  person 
from  doing  wliat  his  own  interest  and 
the  public  welfare  require  that  he  should 
do.  Any  deed,  therefore,  by  w'hich  a 
person  binds  himself  not  to  employ  his 
talents,  his  industry,  or  his  capital,  in 
any  useful  undertakmg  in  the.  kingdom, 
would  be  void.  But  it  may  often  happen 
that  individual  interest  and  general  con- 
venience render  engagements  not  to 
carry  on  trade,  or  to  act  in  a  profession, 
in  a  particular  place,  proper."  Such 
partial  restraints  were  upheld  in  Ches- 
man  v.  Nainby,  in  Clerk  v.  Comer,  Cas. 
temp.  Hardvv.  53,  where  a  bond  Vi'as 
conditioned  not  to  carry  on  trade  within 
the  city  of  Westminster,  or  bills  of  mor- 
tality ;  in  Davis  v.  Mason,  5  T.  R.  118, 
and  in  Bunn  v.  Guy,  4  East,  190,  where 
an  attorney  bound  himself  not  to  prac- 
tice within  London,  and  150  miles  from 
thence.  See  remarks  on  this  case  in 
Bozon  V.  Farlow,  Meriv.  472.  In  Leigh- 
ton  v.  Wales,  3  Mee.  &  W.  545,  the 
restraint  was  against  running  any  coach 
on  a  particular  road.  In  Gale  v.  Reed, 
8  East,  79,  the  restraint  was  partial  in  a 
different  way.  There  the  defendant 
covenanted  not  to  exercise  the  business 
of  a  ropemaker  during  his  life,  except 
on  government  contracts,  and  to  employ 
the  plaintitfs  exclusively  to  make  all  the 
cordage  which  should  be  ordered  of  him 
by  his  friends  or  connexions.  The  plain- 
tiffs were  to  allow  him  two  shillings  per 


cwt.  on  the  cordage  made  on  his  recom- 
mendation for  such  of  his  friends  or  con- 
nexions whose  debts  should  turn  out  to 
be  good ;  and  were  not  to  be  compelled 
to  furnish  goods  to  any  whom  they 
should  be  disinclined  to  trust.  The  court 
held  this  agreement  good,  considering 
that  they  must  construe  the  whole  of  it 
together,  and  that,  construing  it  together, 
it  appeared  not  to  be  the  intention  of  the 
plaintiffs  to  restrain  the  defendant  from 
supplying  such  of  his  connexions  as  they 
tiiemselves  did  not  think  fit  to  trust.  In 
Ward  V.  Byrne,  5  M.  &  W.  .501,  a  bond 
conditioned  not  to  follow  or  be  employed 
in  the  business  of  a  coal  merchant  for 
nine  months  was  held  void.  [See  also 
Hinde  v.  Gray,  I  M.  «fc  Gr.  195.] 

Where  the  restraint  is  partial  in  re- 
spect of  space,  the  proper  way  of  mea- 
suring the  distance  is  to  take  tiie  nearest 
mode  of  '^'access  to  the  point  r^ico-i 
whence  it  is  to  be  reckoned.  '-  -' 
Leigh  V.  Hind,  9  B.  &.  C.  774, 

Upon  the  second  point,  namely,  the 
adequacy  of  the  consideration,  it  was 
held  in  Young  v.  Timniins,  1  Tyrwh. 
226,  that  where  Ireland  bound  himself 
to  work  exclusively  for  certain  persons 
for  his  and  their  lives,  they  not  under- 
taking to  find  him  full  employ,  but,  on 
the  contrary,  reserving  to  themselves 
liberty  to  employ  others,  the  contract 
was  void  for  want  of  adequacy  of  consi- 
deration, though  it  contained  a  proviso, 
under  which  Ireland  was  allowed  to  take 
and  execute  the  orders  of  persons  resid- 
ing in  London,  or  within  six  miles 
thereof  "  If  I  could  find,"  said  Bayley, 
B.,  "any  obligation  on  the  defendants  to 
find  the  bankrupt  a  supply  of  work  suffi- 
cient to  keep  him  and  his  workmen  in 
an  adequate  and  regular  course  of  em- 
ploy, that  might  be  a  good  consideration 
for  the  restraint  he  thus  imposes  on  him- 
self Accord.  Wallis  v.  Day,  2  M.  & 
W.  273.  But  if  no  such  thing  exists, 
but,  on  the  contrary,  I  find  it  possible 
that  no  employ  miglit,  for  a  considerable 
time,  be  given  to  him,  then  there  is  no 
adequate  consideration."  "Tlie  res- 
traint on  one  side  meant  to  be  enforced," 
said  Lord  Ellenborough,  in  Gale  v.  Reed, 
8  East,  86,  "  should  in  reason  be  co-ex- 
tensive  only  with  the  benefits  meant  to 
be  enjoyed  on  the  other." 

In  the  late  case  of  Hitchcock  v.  Co- 
ker,  in  the  Exchequer  Chamber,  in  er- 
ror from  K.  B.,  it  was  contended  that  the 
court  could  not  inquire  in  the  ade- 
quacy of  the  consideration  when  once 


MITCHELL    V.     REYNOLDS. 


377 


shown  to  possess  some  bona  fide  legal 
value.  Tliat  case  perhaps  turned  less 
on  adquacy  than  reasonableness.  In 
the  course  of  the  argument,  Alderson, 
B.,  observed,  that  "  if  the  consideration 
were  so  small  as  to  be  colourable,  the 
agreement  would  be  bad."  In  Leighton 
V.  Wales,  3  M.  &  W.  551,  Parke,  B.,  is 
reported  to  have  said,  tbat  "  it  is  clear 
since  the  case  of  Hitchcock  v.  Coker, 
that  the  court  cannot  inquire  into  the 
extent  or  adequacy  of  the  considera- 
tion ;"  and  in  Archer  v.  Marsh,  6  A.  & 
E.  966,  the  judgment  in  which  v^'as  de- 
layed to  await  the  decision  of  Hitchcock 
V.  Coker,  the  Queen's  Bench  finally 
pronounced  that  case  to  have  decided 
that  the  parties  must  act  on  their  own 
view  as  to  the  adequacy  of  the  compen- 
sation. [The  later  cases  agree  that  the 
doctrine  about  the.flf/e(/i/«c^  of  the  consid- 
eration has  been  entirely  upset  by  Hitch- 
cock V.  Coker;  and  tliat  the  true  ques- 
tion is,  whether  the  contract  is  injurious 
to  the  public  or  not :  if  it  be,  it  is  void  ; 
if  it  be  not,  the  parties  may  contract  for 
what  consideration  they  please  :  Green 
V.  Price,  13  M.  &.  W.  695.  698 ;  Proc- 
tor V.  Sargent,  2  M.  &  Gr.  20.  "It  is 
on  grounds  of  public  policy  alone,"  said 
Parke,  B.,  in  Mallan  v.  May,  11  M.  & 
W.  653,  "  that  these  contracts  are  sup- 
ported or  avoided.  Contracts  for  the 
partial  restraint  of  trade  are  upheld,  not 
because  they  are  advantageous  to  tlie 
individual  with  whom  the  contract  is 
made,  and  a  sacrifice  pro  tanto  of  the 
rights  of  the  community,  but  because  it 
is  for  the  benefit  of  the  public  at  large 
that  they  should  be  enforced."  See  the 
remark  of  Serjt.  Manning  as  to  the 
proper  meaning  of  "  consideration"  in 
the  older  cases,  7  M.  &  Gr.  979.] 

Lastly,  it  is  not  sufficient  that  the  re- 
straint should  be  partial,  and  the  consi- 
deration adequate.  The  agreement 
must  be  reasonable.  "  We  do  not  see, 
(.says  Tindal,  C.  J,,  in  Horner  v.  Graves, 
7  Bingh.  743,)  how  a  better  test  can  be 
applied  to  the  question,  whether  rea- 
sonable or  not,  than  by  considering 
whether  the  restraint  is  such  only  as  to 
afford  a  fair  protection  as  to  the  interests 
of  the  party  hi  favour  of  whom  it  is  giv- 
en, and  not  so  large  as  to  interfere  with 
the  interests  of  the  public.  Whatever 
restraint  is  larger  than  the  necessary 
protection  of  the  party,  can  be  of  no  be- 
nefit to  either ;  it  can  only  be  oppres- 
sive, and,  if  oppressive,  it  is  in  the  eye 
of  the  law. unreasonable.     Whatever  is 


injurious  to  the  interest  of  the  public  is 
void,  on  the  grounds  of  public  policy. 
No  certain  precise  boundary  can  be  laid 
down,  within  which,  the  restraint  would 
be  reasonable,  and  beyond  which,  ex- 
cessive. In  Davis  v.  Mason,  5  T.  R. 
118,  where  a  surgeon  had  restrained 
himself  not  to  practise  within  ten  miles 
of  the  plaintiff's  residence,  the  restraint 
was  held  reasonable  ;  and  in  one  of  the 
cases  150  miles  was  considered  as  not 
an  unreasonable  distance,  where  an  at- 
torney had  bought  the  business  of  ano- 
ther who  had  retired  from  his  profes- 
sion. But  it  is  obvious  that  the  business 
of  an  attorney  requires  a  limit  of  a  much 
larger  range,  as  so  much  may  be  car- 
ried on  by  correspondence  or  by  agents. 
And  unless  the  case  were  such  that  the 
restraint  was  plainly  and  obviously  un- 
necessary, the  court  would  not  feel  itself 
justified  in  interfering.  It  is  to  be  re- 
membered, however,  that  contracts  in 
restraint  of  trade  are,  if  nothing  more 
appears  to  show  them  reasonable,  bad 
in  the  eye  of  the  law.  In  Horner  v. 
Graves,  an  agreement  that  the  defend- 
ant, a  surgeon  dentist,  would  abstain 
from  practising  within  100  miles  of 
York,  was  held  void,  on  the  gouud  that 
the  distance  rendered  it  unreasonable. 
Instances  in  wliich  the  distance  has 
been  held  not  too  large,  and  the  con- 
tract consequently  rea.sonable,  may  be 
found  in  Cliesman  v.  Nainby,  Clerk  v. 
Comer,  Davis  v.  Mason,  and  Bunn  v. 
Guy,  above  cited.  See  also  Leighton  v. 
Wales,  3  M.  &  W.  545,  and  Hitchcock 
V.  Coker,  6  Ad.  &  Ell.  439,  where  A.  in 
consideration  of  B.  employing  him  as 
his  assistant  at  a  salary,  in  the  business 
of  a  chemist,  agreed  not  to  carry  on  bu- 
siness within  3  miles  of  T.,  it  was  urged 
tliat  this  was  unrea.sonable,  because  not 
limited  to  B.'s  lite  or  continuance  in 
trade.  But  held  good,  for,  per  Tindal, 
C.  J.,  "  it  doth  not  appear  to  us  unrea- 
sonable that  tlie  restriction  should  go  so 
far  as  to  secure  to  the  master  the  enjoy- 
ment of  the  price  or  value  for  which  the 
trade  would  sell,  or  secure  the  enjoy- 
ment of  the  same  trade  to  his  purchaser, 
or  legatee,  or  executor.  And  the  only 
eflectual  mode  of  doing  so  appeared  to 
be  by  making  the  restriction  of  the  ser- 
vant's setting  up  the  trade  within  the 
given  limit  co-extensive  with  the  ser- 
vant's life."  See  Archer  v.  Marsh,  6 
A.  &  E.  966,  and  Ward  v.  Byrne,  5  M. 
&  W.  548,  where  a  condition  not  to 
follow  or  be  employed  in  the  business  of 


378 


SMITH    S    LEADING    CASES. 


a  coal-riierchant  for  nine  months  was 
held  unreasonable.  [Y\n  agreement  not 
to  exercise  the  business  of  a  milk-seller 
within  five  miles  from  Northampton 
Square,  and  for  a  limited  time,  was  held 
to  be  reasonable  in  Proctor  v,  Sargent, 
2  M.  &.  Gr.  20.  In  Mallan  v.  May,  11 
M.  &L  W.  653,  a  covenant  not  to  exer- 
cise the  business  of  a  dentist  in  London, 
or  in  any  of  the  places  in  England  or 
Scotland  where  the  plaintiffs  might  have 
been  practising  before  the  expiration  of 
the  defendant's  term  of  service  with 
them,  was  held  to  be  valid  and  enforce- 
able so  far  as  tlie  limit  of  London  was 
concerned,  but  unreasonable  and  void  as 
to  the  residue  of  the  restriction  :  see  S. 
C.  13  Id.  511.  In  like  manner,  in  Green 
V.  Price,  id.  695,  a  covenant  not  to  carry 
on  the  business  of  a  perfumer  within 
the  cities  of  London  or  Westminster,  or 
within  the  distance  of  600  miles  from 
the  same  respectively,  was  held  good  as 
to  the  cities,  and  void  as  to  the  limit  of 
600  miles  from  them.  In  Rannie  v. 
Irvine,  7  xM.  &  Gr.  969,  the  case  of  a 
baker,  a  covenant  not  to  supply  bread  to 
any  of  the  plaintiff's  customers  during 
a  certain  term  was  held  reasonable  and 
valid.] 

On  the  same  reason  with  bonds  and 
contracts  in  restraint  of  trade,  stand  jaer- 
petuilies  :  attempts  to  create  which  are 
never  permitted  by  the  law  to  succeed, 
on  account  of  the  tendency  of  such  limi- 
tations to  paralyse  trade,  by  shackling 
property,  and  preveiiting  its  free  circu- 
lation for  the  purposes  of  commerce  ; 
for  trade  consists  in  the  free  application 
of  labour  to  the  free  circulation  of  pro- 
perty, and  any  restraint  laid  upon  the 
one  would  be  as  injurious  to  its  interests 
as  if  imposed  upon  the  other.  This  doc- 
trine o'i  perpetuities,  as  it  is  called,  is  of 
comparatively  modern  introduction.  Its 
objects  were,  indeed,  at  a  very  ancient 
period  of  English  law,  in  some  degree 
accomplished  by  a  maxim  which  is  re- 
cognised by  our  earliest  writers,  viz. 
that  property  has  certain  inseperable 
incidents,  among  which  is  the  right  of 
aliening  it  by  the  assurances  appropria- 
ted by  the  law  to  that  purpose,  of  which 
incidents  it  cannot  be  deprived  by  any 
private  disposition.  One  of  the  earliest 
cases  in  which  this  doctrine  was  main- 
r=J^lP41  ^^'"^'^  ^^  reported  by  Littleton, 
'■J  sect.  *720,  who  tells  ns  that 
"a  certain  Justice  of  the  Common  Place 
dwelling  in  Kent,  called  Richel,  had 
issue  divers  sons,  and  his  intent  was  that 


his  eldest  son  should  have  certain  lands 
and  tenements  to  him  and  the  lieirs  of 
his  body  begotten,  and,  for  default  of 
issue,  the  remainder  to  the  second  son, 
&.C.,  and  so  to  the  third  son,  &,c.  ;  and 
because  he  would  that  none  of  his  sons 
should  alien  or  make  warrantie  to  bar 
or  hurt  the  others  that  should  be  in  the 
remainder,  &c.,  he  causoth  an  indenture 
to  be  made  to  this  eflect,  viz.  that  the 
lands  and  tenements  were  given  to  his 
eldest  son,  upon  such  condition,  that  if 
the  eldest  son  alien  in  fee,  or  in  fee  tail, 
&c.,  or  if  any  of  the  sons  alien,  &c.,  that 
then  their  estate  should  cease,  and  be 
void,  and  that  then  the  same  lauds  and 
tenements  iunnediately  should  remain  to 
the  second  son,  and  the  heirs  of  his 
body  begotten,  et  sic  ultra,  the  remain- 
der to  his  other  sons  :  and  livery  of  sei- 
sin was  made  accordingly."  This  de- 
vise, however,  was  held  void  ;  and  Mr. 
Butler  remarks,  in  a  learned  note  to  Co. 
Litt.  379,  b.,  the  perusal  of  which  is 
strongly  recommended  to  readers  desir- 
ous of  pursuing  this  subject,  that  "this 
was  one  of  the  many  attempts  which 
have  been  made  to  restrain  that  right  of 
alienation  which  is  inseparable  from  the 
estate  of  tenant  in  tail.  The  chief  of 
them  are  stated  in  a  very  pointed  man- 
ner by  Mr.  Knowler,  1  Burr.  84." 
Upon  the  same  principle,  viz.,  that  pro- 
perty cannot  by  any  private  disposition 
be  robbed  of  its  incidents,  of  which  the 
power  of  alienation  is  one,  proceeds  the 
case  put  by  Littleton,  at  sect.  360,  viz. : 
"Also  if  a  feoffment  be  made  on  this 
condition,  thai  the  feoffee  shall  not  alien 
the  land  to  any,  this  condition  is  void; 
because,  when  a  man  is  enfeoffed  of 
lands  or  tenements,  he  hath  power  to 
alien  them  to  any  person  by  the  law. 
For,  if  such  a  condition  should  be  good, 
then  the  condition  should  oust  him  of  all 
the  power  which  the  law  gives  him, 
which  should  be  against  reason  ;  and 
therefore  such  a  condition  is  void."  On 
which  Lord  Coke  observes,  that  "  the 
like  law  is  of  a  devise  in  fee  on  condi- 
tion that  the  devisee  shall  not  alien  ; 
the  condition  is  void  ;  and  so  it  is  of  a 
grant,  release,  confirmation,  or  any  oth- 
er conveyance,  whereby  a  fee-simple 
doth  pass;  for  it  is  absurd  and  repug- 
nant to  reason  that  he  that  hath  no  pos- 
sibility to  have  the  land  revert  to  biin 
should  restrain  his  feollee  in  fee-simple 
of  all  his  power  to  alien  ;  and  so  it  is  if 
a  man  be  possessed  of  a  lease  for  years, 
or  of  a  horse,  or  of  any  other  chattel, 


MITCHELL     V.     REYNOLDS. 


379 


real  or  personal,  and  give  or  sell  his 
whole  interest  and  property  therein, 
upon  condition  that  the  donee  or  vendee 
sliall  not  alien  the  same,  the  same  is 
void ;  because  his  whole  interest  and 
property  is  out  of  him,  so  as  he  hath  no 
possibility  of  a  reverter,  and  it  is  against 
trade  and  traffic,  and  bargaining  and 
contracting  between  wan  and  man.'''' 
On  this  doctrine,  viz.,  that  property 
cannot  be  deprived  of  the  power  of  alien- 
ation legally  incident  to  it,  by  any  pri- 
vate disposition,  equity  has  ingrafted 
one  exception,  by  allowing  married  wo- 
men to  be  restrained  from  aliening,  by 
way  of  anticipation,  property  limited  to 
tlieir  sole  and  separate  use  during  the 
coverture.  The  precise  extent  to  which 
this  equitable  doctrine  may  be  carried, 
was  long  in  incerto,  and  this  uncertainty 
has  given  rise  to  a  great  deal  of  inter- 
esting discussion,  a  full  account  of  which 
will  be  found  in  a  very  clearly  and 
ably  written  pamphlet  publisbed  by  Mr. 
Hayes,  upon  that  subject.  See  now 
Tullett  v.  Armstrong,  before  the  L.  C, 
an  account  of  which  will  be  found  in 
the  last  edition  of  Hayes  on  Convey- 
ancing. 

To  return  to  the  head  of  Perpetuities. 
It  was  in  time  found  that  the  interests 
of  commerce  were  by  no  means  suffi- 
ciently guarded  by  the  assertion  of  the 
maxim,  that  property  could  not  be  robbed 
of  the  quality  of  transferribility ;  for  it 
would  have  been  easy  to  limit  particu- 
lar estates  in  such  a  manner  as  to  post- 
pone the  actual  enjoyment  of  the  fee  so 
long  as  to  create  what  would  have  been 
virtually,  though  not  nominally,  a  strict 
entail ;  had  not  the  courts,  proceeding 
on  the  maxim  of  law,  Quodcunque  pro- 
hibeter  fieri  ex  directo  prohibetur  et  per 
obliquum,  established  as  an  inflexible 
rule,  "  that  though  an  estate  may  be 
rendered  inalienable  during  the  exist- 
ence of  a  life,  or  of  any  number  of  lives, 
in  being,  and  twenty-one  years  after; 
Cadell  V.  Palmer,  10  Bing.  140,  or,  pos- 
sibly even,  for  nine  months  beyond  the 
twenty-one  years,  in  case  the  person 
ultimately  entitled  to  the  estate  should 
be  an  infant  in  ventre  sa  mere  at  the 
time  of  its  accruing  to  him;  yet,  that 
all  attempts  to  postpone  the  enjoyment 

r  *lfi^  1  *°'^'  '•^^^  ^'^"^  ^°''  ^  1""»6''  period 
^  ^   are   void ;"    and  therefore    in 

the  famous  case  of  Spencer  v.  Duke  of 
Marlborough,  3  Bro.  P.  C.  232,  Eden, 
404,  where  John,  Duke  of  Marlborough 
devised  to  trustees  and  their  heirs,  to 


the  use  of  his  daughter  for  life,  remain- 
der to  Lord  Ryalton  for  life,  remainder 
to  trustees  to  preserve  contingent  re- 
mainders, remainder  to  the  first  and 
other  sons  of  Lord  Ryalton  in  tail  male, 
remainder  to  Lord  Robert  Spencer  for 
life,  remainder  to  trustees  to  preserve 
contingent  remainders,  &c.,  remainder 
to  Charles  Spencer  in  the  same  man- 
ner ;  and  inserted  a  clause,  empowering 
his  trustees,  on  the  birth  of  each  son  of 
Lord  Ryalton,  Lords  Robert  and  Charles 
Spencer,  to  revoke  and  make  void  the 
respective  uses  limited  to  their  respect- 
ive sons  in  tail  male,  and,  in  lieu  there- 
of, to  limit  the  premises  to  the  use  of 
such  sons  for  their  lives,  with  immediate 
remainder  to  the  respective  sons  of  such 
sons  severally  and  respectively  in  tail 
male.  Lord  Northington  declared  the 
clause  void  as  tending  to  a  perpetuity  ; 
and  on  an  appeal  to  the  Lords,  the  judges 
were  unanimously  of  the  same  opinion  ; 
See  Cruise's  Digest,  title  32,  c.  23; 
Beard  v.  Westcotl,  5  B.  &  A.  801 ;  Ca- 
dell V.  Palmer,  ubi  supra  ;  and  JMr.  But- 
ler's note,  Co.  Lit.  379,  b. 

Lord  Coke  has  laid  it  down,  1  Inst. 
200,  that  "if  a  feoflee  be  bound  in  a 
bond  that  tlie  feoffee  and  his  heirs  shall 
not  alien,  this  is  good,  for  he  may  not- 
withstanding alien,  if  he  will  forfeit  hid 
bond  that  he  himself  hath  made."  And 
in  Freeman  v.  Freeman,  2  Vern.  233,  a 
father  settled  lands  on  his  son  in  tail, 
and  took  a  bond  from  him  that  he  would 
not  dock  the  entail.  On  a  bill  to  be  re- 
lieved against  this  bond,  the  court  held 
it  good,  because,  if  the  son  had  not 
agreed  to  give  this  bond,  the  father 
might  have  made  him  only  tenant  for 
life. 

It  seems,  however,  that  the  above 
opinion  of  Lord  Coke  cannot  be  support- 
ed; for,  if  a  general  restraint  on  aliena- 
tion be,  as  it  unquestionably  is,  contrary 
to  public  policy,  there  is  no  more  reason 
for  supporting  a  bond  made  to  enforce  it, 
than  for  supporting  a  bond  in  general 
restraint  of  trade.  And  in  a  case  where 
A.,  having  limited  lands  to  B.  in  tail, 
took  a  bond  from  him  not  to  commit 
waste,  it  was  decreed  to  be  delivered 
up  to  be  cancelled,  the  court  saying  that 
it  was  an  idle  bond.  '  Jervis  v.  Bruton, 
2  Vern.  251.  So,  where  an  elder  bro- 
ther enfeofled  his  second  brother  in  tail, 
remainder  to  a  younger  brother  in  the 
like  manner,  and  made  each  of  tiiem 
enter  into  a  statute  with  the  other  that 
he  would  not  alien ;  because  these  sta- 


380 


SMITHS     LEADING     CASES. 


tutes  were  in  substance  to  make  a  per- 
petuity, tliey  were  ordered  to  be  can- 
celled by  the  Court  of  Chancery,  with 
the  advice  of  Lord  Coke  himself.  Poole's 
case,  Moore,  810. 

It  only  remains  to  remark,  that  Irusls 
for  accumulation,  wliich,  being  thought 
to  partake  of  the  objectionable  nature  of 
perpetuities,  were  formerly  bounded  by 
the  same  limits,  (seeTiiellusson  v.  Wood- 
ford, 4  Ves.  jun.  227,)  are  now  regulated 
by  a  statute  of  their  own,  39  &  40  G, 
3,  c.  9S,  which  enacts  that  no  person, 
after  the  parsing  of  that  act,  '28  July, 
1800,)  shall,  by  any  deed  or  will,  "set- 
tle or  dispose  of  any  real  or  personal 
property  so  and  in  such  manner  that  the 
rents,  issues,  profits,  or  produce  thereof 
shall  be  wholly  or  partially  accumulated 
for  any  longer  term  than  for  the  life  or 
lives  of  any  such  grantor  or  grantors, 
settlor  or  settlors,  or  the  term  of  twenty- 
one  years  from  the  death  of  any  such 
grantor  or  grantors,  settlor  or  testator, 
or  during  the  minority  or  respective 
minorities  of  any  person  or-  persons 
who  shall  be  living  or  in  ventre  sa 
mere  at  the  time  of  the  death  of  such 
grantor,  devisor,  or  testator,  or  during 
the  minority  or  respective  minorities 
only  of  any  person  or  persons  who  un- 
der the  uses  or  trusts  of  the  deed,  sur- 
render, will,  or  other  assurance  direct- 
ing such  accumulations,  would,  for  the 
time  being,  if  of-  full  age,  be  entitled  to 
the  rents,  issues,  profits,  and  produce  of 


such  property  so  directed  to  be  accumu- 
lated. And  in  every  case  where  any 
accumulation  shall  be  directed  olhei'- 
wise  than  as  aforesaid,  such  directioa 
shall  be  null  and  void,  and  the  rents, 
issues,  profits,  and  produce  of  such  pro- 
perty so  directed  to  be  accumulated 
shall,  so  long  as  the  same  shall  be  direct- 
ed to  accumulate  contrary  to  the  provi- 
sions of  this  act,  go  to  and  be  r  ^laf;  -i 
received    by  such    ^person   or   •-  -^ 

persons   as   would    have    been   entitled  • 
thereto,   if  such  accumulation  had  not 
been  directed. 

"  Provided  always,  that  nothing  in 
that  act  contained  should  extend  to  any 
provision  for  payment  of  debts  of  any 
grantor,  settlor,  or  devisor,  or  other 
person  or  persons,  or  any  provision  fof 
raising  portions  for  any  child  or  children 
of  any  person  taking  any  interest  under 
any  such  conveyance,  settlement,  or 
devise,  or  to  any  direction  touching  the 
produce  of  any  timber  or  wood  upon 
any  lands  or  tenements,  but  that  all  such 
provisions  and  directions  may  and  shall 
be  made  and  given  as  if  that  act  had 
not  passed,"  See,  on  the  construction 
of  this  statute,  Griffiths  v.  Vere,  9 
Ves.  jun.  127  ;  Longden  v.  Simson,  12 
Ves.  295;  Southampton  v.  Hertford,  2 
V,  &  B.  54;  Marshall  v.  HoUoway,  2 
Swanst.  432;  Haley  v.  Bannister,  4 
Madd.  275;  Shaw  v.  Rhodes,  1  Myl. 
&  Cr.  135.     ■ 


In  Pierce  v.  Fuller,  8  Massachusetts,  223,  a  covenant  with  liquidated 
damages,  by  which  the  defendant,  in  consideration  of  one  dollar,  agreed  not 
to  run  a  stage  between  Boston  and  Providence,  in  opposition  to  the  plaintiff) 
was  decided,  on  demurrer,  to  be  valid:  the  court,  per  Sedgwick,  J.,  said: 
That  contracts,  to  restrain  trade  in  general,  are  unquestionably  bad  ;  but 
that  contracts  for  a  limited  restraint  of  trade,  if  made  on  sufficient  and  rea- 
sonable consideration,  and  under  circumstances  appearing  to  be  fair  and 
honest,  of  which  the  court  are  to  judge,  are  valid:  if  it  does  not  appear 
whether  the  contract  was  or  was  not  on  good  consideration,  so  that  the  con- 
tract 171(11/  be  either  good  or  bad,  it  is,  prima  facie,  a  presumption  of  law 
that  the  contract  is  bad,  because  it  is  to  the  prejudice  of  honest  industry, 
and  is  of  apparent  mischief  to  the  public,  and  because  the  injury  to  one 
party  is  certain,  and  the  benefit  only  presumptive  ;  and  therefore  all  con- 
tracts barely  in  restraint  of  trade,  where  no  consideration  is  shown,  are  bad  ; 
and  to  make  them  valid,  the  consideration,  and  special  circumstances  induc- 
ing the  arrangement,  must  be  shown  to  the  court,  and  approved  of  by  it. 


MITCHELL    V.     REYNOLDS.  381 

In  this  case,  the  agreement  appearing  to  be  a  reasonable  and  honest  one, 
the  court  decided  that  the  considea-ation  of  one  dollar,  having  been  fixed  and 
adopted  by  the  parties,  as  adequate,  was  sufficient  in  law.  In  Palmer  et  al. 
V.  Slebbins,  3  Pickering,  188,  a  penal  bond  to  enforce  a  similar  restraint 
was  held  good  on  similar  grounds  ;  and  in  this  case,  Wilde,  J,,  delivering 
the  opinion  of  the  court,  certainly  inclined  to  form  no  very  strong  presump- 
tion against  such  restraints  ;  and  see  in  support  of  the  validity  of  limited 
restraints  of  trade ;  Nobles  v.  Bates,  7  Cowen,  307;  Pierce  v.  Woodward, 
6  Pickering,  206. 

In  Chappel  v.  Brockway,  21  Wendell,  158,  which  was  debt  on  a  penal 
bond,  the  circumstances  of  the  contract  being  similar  to  those  in  Pierce  v. 
Fuller,  except  that  the  consideration  was  large,  the  court  laid  down  the 
same  principles  as  those  above  noted  from  Pierce  v.  Fuller;  that  contracts 
in  general  restraint  of  trade,  on  whatever  consideration  made,  are  void  ; 
that  as  to  contracts  for  a  limited  restraint,  the  courts  start  with  the  presump- 
tion that  they  are  bad;  but  they  will  be  upheld  if  they  are  shown  to 
have  been  made  upon  adequate  consideration,  and  upon  circumstances 
reasonable  and  useful;  and  that  in  such  case  a  penal  bond  is  as  valid  as 
a  covenant  or  promise  :  and  with  regard  to  the  extent  of  the  restraint, 
they  considered  the  rule  to  be,  that  a  restraint  is  reasonable,  if  it  be  not 
larger  than  is  necessary  to  afford  a  fair  protection  to  the  other  party  in  the 
enjoyment  of  his  trade,  which  must  depend  mainly  on  the  nature  of  the 
trade  or  business.  In  Ross  v.  Sadgbeer,  id.  166,  in  debt  on  bond,  condi- 
tioned that  the  defendant  should  not  exercise  the  business  of  manufacturing 
pot  and  pearl  ashes,  &c.,  for  ten  j-ears,  and  within  forty  miles  of  the  village 
of  li,,  the  plaintiff  demurred,  and  the  court  adjudged  the  declaration  bad, 
because  it  showed  no  sufficient  consideration  or  good  reason  for  making  the 
bond  ;  and  said,  that  though  the  seal  imported  a  consideration,  so  that  some 
consideration,  and  perhaps  one  indefinitely  large  might  be  implied  from  the 
bond,  yet  it  did  not  afford  a  presumption  of  such  circumstances  and  rea- 
sons as  are  required  to  uphold  this  sort  of  contract:  they  thought  also,  that 
if  the  bond  did  not  set  forth  the  circumstances,  the  plaintifi"  might  have 
averred  them  in  the  declaration,  and,  if  good,  they  would  have  sustained 
the  agreement;  but  on  this  point  they  would  not  pass  definitely.  In 
both  of  these  cases,  doubts  were  expressed  by  Bronson,  J.,  whether  the 
nominal  consideration  in  Pierce  v.  Fuller  was  properly  decided  to  be 
sufficient. 

H.  B.  W. 


382  smith's   leading  cases. 

[*iS7]  *SIMPSON  V.  HARTOPP. 

MICH.— 18  GEO.  1  C.  B. 
[reported  willes,   512.] 

Implements  of  trade  are  privileged  from  distress  for  rent,  if  they  be  in  actual  use  at  the 
time,  or  if  there  be  any  other  sufficient  distress  on  tlie  premises. 

But  if  they  be  not  in  actual  use,  and  if  tiiere  be  no  other  sufficient  distress  on  the  pre- 
mises, then  tlicy  may  be  distrained  for  rent. 

The  opinion  of  the  court  was  delivered,  as  follows,  by 

Willes,  Lord  Chief  Justice.  Trover.  This  comes  before  the  court  on  a 
special  verdict,  fout;id  at  the  Leicester  assizes,  held  at  Leicester,  on  the  3d 
of  August,  1743. 

The  plaintiff  declared  against  the  defendant,  for  that  on  the  20th  of 
October,  1741,  he  was  possessed  of  one  frame  for  the  knitting,  weaving, 
and  making  of  stockings,  value  20/.  as  of  his  own  proper  goods,  and  being 
so  possessed,  he  lost  the  same,  and  that  afterwards,  to  wit,  on  the  18th  of 
August,  1742,  it  came  to  the  hands  of  the  defendant,  who  knowing  the 
same  to  be  the  goods  of  the  plaintiff,  afterwards,  to  wit,  on  the  19th  day  of 
the  same  month  of  August,  converted  the  same  to  his  own  use :  damage 
30/. 

The  defendant  pleads  not  guilty  ;  and  the  jury  find  that  the  plaintiff,  on 
the  27lh  of  March,  1741,  was  possessed  of  one  frame  for  knitting,  weaving 
and  making  stockings,  value  8/.,  as  his  own  proper  goods.  That  upoa 
that  day  he  let  the  same  frame  to  John  Armstrong,  at  the  weekly  rent 
of  del.,  and  so  from  week  to  week,  as  long  as  they  the  said  Nathaniel 
Simpson,  the  plaintiff,  and  John  Armstrong  should  please  ;  by  virtue  of 
which  letting  the  said  John  Armstrong  was  possessed  of  the  said  frame,  at 
the  said  rent,  until  the  time  after-mentioned,  when  the  same  was  seized 
r*ifi«"l  *^^  ^  distress  for  rent  by  the  defendant.  That  the  said  John  Arm- 
>-  -'  strong  is  by  trade  a  stocking-weaver  and  used  the  said  stocking 
frame  as  an  instrument  of  his  trade,  and  continued  the  use  thereof,  and  his 
apprentice  was  using  the  said  stocking-frame  at  the  time  thereinafter  mention- 
ed, when  the  same  was  seized  by  the  defendant  as  a  distress  for  rent.  That 
the  said  John  Armstrong  held  of  the  defendant  a  certain  messuage  or  tene- 
ment, in  the  parish  of  Woodhouse  and  county  of  Leicester,  by  virtue  of  a 
lease  to  him  the  said  John  Armstrong  thereof  granted  by  the  defendant 
under  the  yearly  rent  of  35/.  for  a  term  of  years  not  yet  expired,  and  was 
in  the  actual  possession  of  the  same  when  the  said  stocking-frame  was  dis- 
trained for  rent  by  the  defendant.  That  on  the  19th  of  December,  1741, 
John  Armstrong  was  indebted  to  the  defendant  in  53/.  for  arrears  of  rent  of 
the  said  messuage  and  tenement ;  and  that  the  said  stocking-frame  was 
then  upon  the  said  messuage  in  the  possession  of  the  said  John  Armstrong, 
and  that  there  were  not  goods  or  chattels  by  law  distrainable  for  rent  in 
the  said  messuage  without  the  said  stocking-frame  sufficient  to  satisfy  the 


SIMPSON    V.     HARTOPP.  383 

said  rent  so  in  arrcar  at  the  time  when  the  said  stocldng-frame  was  seized 
as  a  distress  for  tlie  said  rent.  That  on  the  said  19th  of  December  the 
defendant  entered  into  the  said  messuage  and  tenement,  and  then  and  there 
seized  the  said  stocking-frame  on  the  said  premises  as  a  distress  for  the  said 
rent  so  in  arrear,  as  the  said  John  Armstrong's  apprentice  was  then  weav- 
ing a  stocking  on  the  same  frame.  And  that  the  defendant  (though  often 
requested)  hath  refused  to  dehver  the  said  stocking-frame  to  tiie  said  plain- 
tiffi  and  continues  to  detain  the  same.  The  special  verdict  concludes,  as 
usual,  by  submitting  the  matter  to  the  opinion  of  the  court  whether  the 
said  stocking-frame  was  by  law  distrainable  for  the  said  arrears  of  rent  or 
not  ;  and  if  the  court  should  be  of  opinion  that  it  was  not,  they  assess  the 
damages  of  the  plaintiff  at  8/.,  &c. 

Upon  this  special  verdict  three  questions  arise  : — 

First,  Whetlier  a  stocking-frame  has  any  privilege  at  all  as  being  an 
instrument  of  trade,  or  whether  it  be  generally  distrainable.  for  rent  as  other 
goods  are,  even  though  there  was  sufficient  distress  besides. 

Secondl}^  Though  it  may  be  so  far  privileged  as  not  to  *be  dis-  r^tpn-i 
trainable  if  there  be  no  other  goods  sufficient,  yet  whether  or  not  it  •-  -• 
may  not  be  distrained  if  there  be  not  sufficient  distress  besides. 

Thirdly,  Though  it  be  distrainable  either  in  the  one  case  or  the  other 
when  it  is  not  in  actual  use,  yet  whether  or  no  it  has  not  a  particular 
privilege  by  being  actually  in  use  at  the  time  of  the  distress,  as  the  present 
case  is. 

I  shall  but  touch  upon  the  two  first  questions  because  they  are  not  the 
present  case  ;  but  yet  it  may  be  proper  to  consider  them  a  httle,  to  introduce 
the  third,  wiiich  is  the  very  case  now  in  question. 

There  are  five  sorts  of  things  which  at  common  law  were  not  distrainable. 

1st.  Things  annexed  to  the  freehold. 

2nd.  Things  delivered  to  a  person  exercising  a  public  trade,  to  be  car- 
ried, wrought,  worked  up,  or  managed  in  the  way  of  his  trade  or  employ. 

3rd.  Cocks  or  sheaves  of  corn. 

4th.  Beasts  of  the  plough  and  instruments  of  husbandry. 

5ih.  The  instruments  of  a  man's  trade  or  profession. 

The  first  three  sorts  were  absolutely  free  from  distress,  and  could  not  be 
distrained,  even  though  there  were  no  other  goods  besides. 

The  two  last  are  only  exempt  sub  modo,  that  is,  upon  a  supposition  that 
there  is  sufficient  distress  besides. 

Things  annexed  to  the  freehold,  as  furnaces,  millstones,  chimney-pieces, 
and  the  like,  cannot  be  distrained,  because  they  cannot  be  taken  away  with- 
out doing  damage  to  the  freehold,  which  the  law  will  not  allow. 

Things  sent  or  delivered  to  a  person  exercising  a  trade,  to  be  carried, 
wrought,  or  manufactured  in  the  way  of  his  trade,  as  a  horse  in  a  smith's 
shop,  materials  sent  to  a  weaver,  or  cloth  to  a  tailor  to  be  made  up,  are  pri- 
vileged for  the  sake  of  trade  and  commerce,  which  could  not  be  carried  on 
if  such  things  under  these  circumstances  could  be  distrained  for  rent  due 
from  the  person  in  whose  custody  they  are. 

Cocks  and  sheaves  of  corn  were  not  distrainable  before  the  statute  2  W. 
&  M.  c.  5,  (which  was  made  in  favour  of  landlords),  because  they  could  not 
be  restored  again  in  the  same  plight  and  condition  that  they  were  before 


384  smith's    LEADING     CASES. 

r*iQm  ^P°'^  *^  replevin,  but  must  necessarily  be  damaged  by  being  rc- 
L         -I  moved. 

Beasts  of  the  plough,  &c.,  were  not  distrainable,  in  favour  of  husbandry 
(which  is  of  so  great  advantage  to  the  nation),  and  Hkewise  because  a  man 
should  not  be  left  quite  destitute  of  getting  a  living  for  himself  and  his  family. 
And  the  same  reasons  held  in  the  case  of  the  instruments  of  a  man's  trade 
or  profession. 

But  these  two  last  are  privileged  in  case  there  is  distress  enough  besides  ; 
otherwise  they  may  be  distrained. 

These  rules  are  laid  down  and  fully  explained  in  Co.  Litt.  47,  a.  b.,  and 
many  other  books  which  are  there  cited  ;  and  there  are  many  subsequent 
cases  in  which  the  same  doctrine  is  established,  and  which  I  do  not  mention 
because  I  do  not  know  any  one  case  to  the  contrary. 

From  what  I  have  said  on  this  head,  the  second  question  is  likewise 
answered  ;  for  as  the  stocking-frame  in  the  present  case  could  only  be  pri- 
vileged as  it  was  an  instrument  of  trade,  we  think  that  it  might  have  been 
distrained  if  it  had  not  been  actually  in  use,  it  being  found  that  there  was  not 
sufficient  distress  besides.  These  are  the  words  in  Carth.  358,  in  the  case 
of  Vinkinstone  v.  Ebden,  "  the  very  implements  of  trade  may  be  distrained 
if  no  other  distress  can  be  taken." 

But  whether  or  no  this  stocking-frame's  being  actually  in  use  at  the  lime 
of  the  distress  gives  any  further  privilege,  is  the  third  and  principal  question 
in  the  present  case.  And  we  are  all  of  opinion  that  upon  this  account  it 
could  not  be  distrained  for  rent  for  these  two  plain  reasons  : 

1st.  Because  it  could  not  be  restored  again  upon  a  replevin  in  the  same 
plight  and  condition  as  it  was,  but  must  be  damnified  in  removing,  for  the 
weaving  of  the  stocking  would  at  least  be  stopped,  if  not  quite  spoiled,  which 
is  the  very  reason  of  the  case  in  corn  in  cocks,  &c. 

2ndly.  Whilst  it  is  in  the  custody  of  any  person,  and  used  by  him,  it  is 
a  breach  of  the  peace  to  take  it.  And  these  are  two  such  plain  and  strong 
reasons,  that  even  if  it  were  quite  a  new  case,  I  should  venture  to  deter- 
mine it  without  any  authority  at  all;  but  I  think  that  there  are  several  cases 
and  authorities  which  confirm  this  opinion. 

r*iqi"i  ■"■'■  ^^  expressly  said  in  Co.  Lit.  47,  a.  that  a  horse  whilst  *a 
L  -^  man  is  riding  upon  him,  or  an  axe  in  a  man's  hand  cutting  wood, 
and  the  like,  cannot  be  distrained  for  rent.  In  Bracton,  and  several  other 
old  books,  there  is  a  distinction  made  between  catalla  otiosa  and  things  which 
are  in  use.  It  was  held  in  P.  14  H.  8,  pi.  6,  that  if  a  man  has  two  millstones, 
and  only  one  is  in  use,  and  the  other  lies  by  not  used,  it  may  be  distrained 
for  rent.  In  Read's  case,  Cro.  Eliz.  594,  it  was  holden  that  yarn  carrying 
on  a  man's  shoulders  to  be  weighed  could  not  be  distrained  any  more  than  a 
net  in  a  man's  hand,  or  a  horse  on  which  a  man  is  riding.  So  in  Moor,  2H, 
The  Viscountess  of  Bindon's  case,  it  is  said  that  if  a  man  be  riding  on  a 
horse,  the  horse  cannot  be  distrained,  but  if  he  hath  another  horse,  on  which 
he  rides  sometimes,  this  spare  horse  may  be  distrained. 

I  could  cite  many  other  cases  to  the  same  purpose,  but  I  think  that  these 
are  sufficient  to  support  a  point  which  has  so  strong  a  foundation  in  reason, 
especially  since  there  is  but  one  case  wliich  seems  to  look  the  contrary  way, 
which  is  the  case  of  Webb  v.  Bell,  1  Sid.  440,  where  it  was  holden  that  two 
horses  and  the  harness  fastened  to  a  cart  loadcn  with  corn  might  be  dis- 


StMProitjV'.    HARTOPP. 


385 


traioWa  fotkrit.  •.  Bat  4n'  the -first  place^-raHrhotelefar  that  tlris  ease  is law? 
and  besi-des,  it  is  expressly  said  in  that  case  that  a  horse  upon  which  a  "man 
was  riding  cannot  be  distrained' for  .rent ;  and  therefore  a  quaere  is.  made 
wliether  if -a.  man  had  been  on  the  cart  the  whole  had  not  been  privileged, 
\vhich  is  sufficieitt.  for  tlije  prq^ent  p.urpose,  it  being  found  that  the  atocking- 
frame  was  to  he  i«t^e  actual  use  ofa  man  at  the  time  when  it.was  distrained. 
For  these  reasons, .and  upon'  the  strerigtli  of  iJies'e  authorities,  we  are  alt 
of  op:iiTion  that  this  stocking-frame,  the  apprentice  being  actually  weaving  a 
stocking  upon  it  at  the  time  when  it  was  distrained,  was  not  distrainable  for 
rjent,  even  though  there  wor.e.'-no' other  distress  on  the  premises,  and  there- 
fore judgmentmust  be  for  the  plaintiff    .  ■-     '   '.     . 


;^'"^vst 


This  is  usually  cited  as  a  Ieadii% 
case,  whenever  a  question  arises  Te- 
specting  tlie  exemption  of  property  from 
Uistress,  ai>d  deservedly  so,  for  it  would 
be  difficult,  to  find  a  clearer  summary  of 
tlie  authorities,  as  tliej'  existed  at  the 
time  when  it  v»ras  decided,  than  is  cori- 
•■tamct]  in  the  j-udgment  of  the  Lord 
Gluef  Justice.  "  It  is,"  said  Bullcr,  J.^ 
4  T.  R.  568,  "a  case  of  great  autkority, 
because  it  was  twice  argued  at  tlie  bar ; 
and  Lonl  Chief  Justice  WiUes  took 
r*Yq-*>l  infinite  pains,  to  *trac6  with 
\-  --I  accuxacy  those  things  which 
•aire- privileged  from  distress." 

There  are,  according  to  his  lordship, 
five  sorts  of  property  privileged  from 
distress  for  rent  by  the  com)non  law, 
and  to . these  tlie  judgiuentin  the  ptin- 
cipal  case  authorizes  us  to  add  a  sixtlj. 
Ilie  list  then  wilt  stand  thus:— *    :.-  -  •; 

Things  absoliUely  privileged  at  the 
commx)nlaw.  - 

•1.  Things  annexed  to  the  freehold. 

2.  Things  delivered  to  a  person  ex- 
ercising a  public  trade  to  be  carried, 
wrou!^lit,  worked  up,  or  managed  jn  the 
ivay  of  his  trade  or  employ. ; 

3.  Cocks  and  sheaves  of-corn.': 

4.  Things  in  actual  use.    ■ 

With  respect  to  the  first  class,  viz. 
fixtures.  It  was  always  held  for  clear 
law,  tliat  they  were  not  distrainable,  for 
tlie  reason  stated  by  the  Chief  Justice; 
see  4  T.  R.  567;  and  there  is  a  dis- 
tinction in  this  respect  between  a  dis- 
tress-and  an  ex'ecution  ;  for,  under  the 
latter,  fixtures,  which  would  be  remov- 
able by  the  defendant,  as  between  him 
and  his  lessor,  may  be  seized  ;  Poole's 
case,  1  Sal.  366.  See  3  Atk.  13 ;  3  B, 
&.  C  368:  and  so  may  growing  corn, 
ibid.,  though   neither  the  tenant's  fix- 

VoL.  I.— 25 


tures,  m)r  the  growing  corn,  would  at . 
common  law  have  been  distrainable; 
However,  as  respects  the  growing  corn, 
the  law  is  now  altered  by  stat.  II  G.  2,' 
c.  IQ,  s,  8,  which  enacts  that  landlords 
or  their  bailitTs,  or  other  persons  em- 
powered by  them,  may  distrain  corn, 
grass,  or  other  product  growmg  on  any 
part  of  the  land  demised.  The  words 
oikcr  product  have  lx:'en  explained  to 
apply  only  to  other  product  of  a  nature 
similar  to  the  things  specified,  that  is  to 
say,  product  to  which  the  process  of 
ripening,  and  being  cut,  gathered,  made, 
and  laid  up  when  ripe,  is  incidental,. 
Therefore,  trees  or  shrubs  growing  in  a 
nursery  ground  are  not  distrainable  un-'  . 
der  this  statute.  Clark  v.  Gaskarth,  8 
Tannt.  431.  See,  too,  the  further  qual- 
ifications introduced  by  the  56  G..  3, cap. 
51),  sec.  Gr  and  see  Wright  v.  Dewes,  1 

A.  &  E.  641  :  and  see  1  M-fe  Wels. 
448.  In  a  late  case  in  the  Court  of 
Excheqner,  where  A.  T.  had  granted  to 

B.  11.  an  annuity,  charged  on  eertain 
premises,  and  empowered  him  to  dis- 
train fbr  the  arrears,  and  "  to  detain, \ 
manage,  sell,  and  dispose  of  tJie  dis- 
tresses in  the  same  manner,  in  all  re- 
spects, as  distresses  for  rents  reserved 
upon  leases  for  years,  and  as  if  the  said 
annuity  was  a.rent  reserved  upon  a 
lease  for  years,"  the  court  thought  that 
these  words  did  not  empower  the  gran- 
tee to  distrain  growing  crops,  but  only 
conferred  upon  him  the  powers  given  to 
landlords,  by  stat.  2  W.&  M.  cap,  5, 
Miller  v.  Green,  2Tyrwh.  1 ;  2  C.  &  J. 
143;  8Bing.92.  - 

2ud.  Things  delivered-  to  a-  person 
exercising  a  public  trade  to  he  carried, 
wrought,  worked  up,  or  managed  in 
the  way  of  his  trade  or  employ.     That 


386 


SMITH     S    LEADING    CASES. 


this  blass  of  property  is  exempt  from 
distress  has  never  been  questioned.   See 
Gisbourn  v.  Hurst,  Salk.  249 ;    1  Inst. 
47  a.     But  tlie  dispute  has  always  been 
in   ascertaining  whether   the  goods  in 
each    particular  case  were  so  circum- 
stanced as  to  fall  within  it.     The  exam- 
ples commonly  cited   as  being  clearly 
within  the  rule,  are  those  of  cloth  bailed 
to  a  tailor  to  make    a  garment,  or  a 
horse  standing  in  a  smith's   shop  to  be 
shod;  so,  too,  goods  of  the  principal  in 
the  factor's  hands  cannot  be  distrained 
by    the    factor's    landlord  ;    Gilman    v. 
Elton,  3  B.  &  B.  75 ;  for  the   advance- 
ment  of  trade  as  much  requires   that 
goods  should    be  placed   in   a    factor's 
hands  for  sale,  as  in  a  carrier's  for  car- 
riage ;  and,  on  the  same  principle,  goods 
deposited   for  safe  custody  in  a   ware- 
house or  a  wharf  would  not  be  distrain- 
able   for   rent  due    in   respect   thereof. 
Thompson  v.    Mashiter,  1  Bingli.  263. 
Mathias  v.  Mesnard,  2  C.   &  P.  353. 
Lately,  also,  it  has  been  decided  that 
goods  deposited  on  the  premises  of  an 
auctioneer,  for  the  purpose  of  sale,  are 
privileged  from  a  distress  for  rent  due 
in  respect  of  those  premises  ;  Adams  v. 
Grane,  3  Tyrwh.  320  ;  1  C.  &  M.  390  ; 
for,    to   use    the   w-ords  of  Bayley,    B., 
"Interest   reipublicse   to  bring    buyers 
and   sellers    together   at   fixed   places, 
where  goods   may   be  brought  for   the 
purposes  of  sale  and  exchange.     This 
privilege  is,  therefore,  of  great  impor- 
tance to    the    owners    of  goods,    who 
should  not  be   exposed   to    the    risk  of 
losing  them,  from  the  default  of  the  par- 
ties on  whose  premises  tliey  may  be  de- 
posited for  that  purpose."     In  Brown  v. 
Shevill,  2  Adol.  &  Ell.  138,  a  beast  was 
r*10^1  *sent  to  the  premises  of  Wood- 
>■        J  ham,  a   butcher,   to  be   slaugh- 
tered, and  after  it  had  been  slaughtered, 
the  carcass  was  seized   for  rent  due  by 
Woodham.     The  Court  of  King's  Bench 
held  that  it  was  not  distrainable.     This 
species  of  privilege,  as  is  remarked  by 
Bayley,  B.,  m  his  judgment  in  Adams  v. 
Grane,  "  has    been   from    time  to  time 
increased   in  extent,  according   to  the 
new  modes   of  dealing   established  be- 
tween parties   by  the  change  of  times 
and  circumstances,  one  of  which  mod- 
ern modes  of  dealing  is  the  case  of  a 
factor."     His  lordship,  in  the  same  case, 
cites  and  approves  an  observation  made 
by  Mr.  J.  Blackstone,  in  his  Commenta- 
ries that  "  the  exemption  from  liability 
to  distress,  in  a  case  of  this  sort,  occa- 


sions no  hardship,  because  the  privilege 
is  generally  applicable  to  goods  which 
no  man  could  possibly  suppose  to  be  the 
property  of  the  mdividual  from  whom 
the  rent  is  due."  In  Muspratt  v.  Greg- 
ory, 1  M.  &  Wels.  653,  it  was  held  by 
the  Exchequer,  Parke,  B.,  dissentiente, 
and  confirmed  in  Error,  3  Mee.  &  W. 
678,  that  a  barge,  which  a  person  mean- 
ing to  purchase  salt,  sent  to  the  salt- 
works to  carry  it  home,  was  not  privi- 
leged from  distress  for  the  arrears  of  a 
rent-charge.  Vide  tamen,  as  to  the 
case  of  a  carriage  actually  containing 
privileged  goods.  Rede  v.  Barley,  Cro. 
Eliz.  596;  Gisbourn  v.  Hurst,  Salk. 
249. 

In  the  case  of  Francis  v.  Wvatt,  1 
Bl.  R.  483,  3  Burr.  1498,  the'  court 
seemed  strongly  inclined  to  think  that 
a  carriage  standing  in  the  yard  of  a  liv- 
evy-stable  was  distrainable  for  rent  due 
to  his  landlord  by  the  keeper  of  the  liv- 
ery-stable. And  in  Wood  v.  Clarke,  1 
Tyrwh.  314,  1  C.  &  J.  484,  it  was  heM 
that,  though  materials  delivered  by  a 
manufacturer  to  a  weaver,  to  be  by  him 
manufactured  at  his  own  home,  were 
privileged  from  distress  for  rent  due 
from  the  weaver  to  his  landlord,  yet 
that  a  frame  or  other  machinery  deliv- 
ered by  the  manufacturer  to  the  weaver 
along  with  the  materials,  for  the  pur- 
pose of  being  used  in  the  weaver's 
liouse  in  the  manufacture  of  such  mate- 
rials, was  not  privileged,  unless  there 
were  other  goods  upon  the  premises  suffi- 
cient to  satisfy  the  rent  due.  "This 
case,"  said  Lord  Lyndhurst,  delivering 
the  judgment  of  the  court,  "  does  not 
turn  upon  the  privilege  of  a  workman 
with  respect  to  the  implements  and  ma- 
chinery by  which  his  trade  is  to  be  car- 
ried on,  but  upon  the  privilege  of  the 
person  by  whom  the  workman  is  em- 
ployed. The  plaintiffs,  who  were  the 
employers,  furnished  the  workman  not 
only  with  the  materials  on  which  he 
was  to  work,  but  also  with  the  machi- 
nery by  which  materials  were  to  be 
worked  up.  The  question  is  as  to  the 
extent  of  the  employer's  privilege, 
whether  it  is  confined  to  the  materials 
which  he  supplies,  or  applies  also  to  the 
machinery  by  which  the  working-up  is 
effected.  It  appears  to  us  that  it  is  con- 
fined to  the  materials,  and  does  not  in- 
clude the  machinery."  .  .  .  None  of 
the  cases  go  beyond  this :  that  the  ma- 
terial to  be  worked  up  is  privileged; 
that  the  conveyance  by  which  it  is  car- 


SIMPSON     V.     HARTOPP. 


387 


ried  to  and  from  the  place  of  manufac- 
ture is  privileged  ;  that  it  is  privileged 
in  the  hands  of  the  carrier  while  he  is 
carrying-  it,  in  tiie  hands  of  the  factor  to 
whom  it  is  consigned,  and  in  the  hands 
and  warehouse  of  a  wliarfinger,  where 
it  is  lodged  and  deposited  by  the  factor. 
There  is  no  case  or  dictum  that  the  ma- 
chinery by  which  it  is  to  be  manufac- 
tured is  included  in  tlie  privilege." 
This  decision  is  approved  in  Fenton  v. 
Logan,  9  Bing.  676. 

3.  Cocks  and  sheaves  of  corn. 
See  Wilson  v.  Ducket,  2  Mod.  61. 
The  reason  for  this  exemption  was,  that 
the  distress  beingatcommon  law  merely 
a  pledge,  things  were  held  not  to  be  dis- 
trainable  which  could  not  be  restored  in 
the  same  plight  as  they  were  in  at  the 
time  of  taking  them.  But  by  2  VV.  & 
M.  c.  5,  siicaves  or  cocks  of  corn,  or 
loose  corn  and  hay  lying  upon  any  part 
of  the  land  cliarged  with  the  rent,  may 
be  seized,  secured,  and  locked  up  in  the 
place  where  found,  in  the  nature  of  a 
distress,  until  replevied  ;  but  the  same 
must  not  be  removed,  to  the  damage  of 
the  owner,  from  such  place ;  and  the 
landlord  has,  it  would  seem,  no  op- 
tion, but  ?nust  sell  at  the  expiration  of 
five  days,  per  Parke,  B.,  1  M.  &  Wels. 
448. 
4.  Things  in  actual  use. 
These,  as  the  text  informs  us,  are 
privileged  in  order  to  prevent  the 
breach  of  the  peace  whicli  might  be 
occasioned  by  an  attempt  to  distrain 
them. 

The  above  four  sorts  of  property  are 
the  only  sorts  where  absolute  freedom 
from  distress  could  be  deduced  from 
Simpson  v.  Hartopp ;  it  is,  however 
proper  to  observe,  that  there  are  two 
other  descriptions  of  goods  absolutely 
privileged  from  distress  at  common  law  ; 
1st,  Animals  ferse  naturte,  and  other 
things,  wherein  no  valuable  property  is 
r*ion  "^  ^"y  person.  Finch,  176  ;  *Bro. 
I-  ^*^'*J  Abr.,  Property,  pi.  20;  Com. 
Dig.  Dist.  C.  ;  Keilway,  30,  b. ;  Co. 
Litt.  47,  a.;  1  Rolle's  Abr.  666.  But 
deer  in  an  inclosed  ground  do  not 
fall  within  this  exemption,  Davis  v. 
Powell,  Willes,  47.  2ndly,  Things  in 
the  custody  of  the  law,  such  as  property 


already  taken  damage  feasant  or  in  ex- 
ecution. 1  Inst.  47,  a. ;  Gilb.  Dist.  ed. 
1757,  p.  44 ;  Eaton  v.  Southby,  Willes, 
131 ;  Peacock  v.  Purvis,  2  B.  &  B. 
3.52;  Wright  v.  Dewes,  1  Ad.  &  El. 
641. 

Next  with  respect  to  property  condi- 
tionally privileged.  Of  this  the  Chief 
Justice  enumerates  two  classes  : 

1.  Beasts  of  the  plough  and  instru- 
ments of  husbandry. 

2.  Instruments  of  a  man's  trade  or 
profession. 

These  two   species   of  property    are 
privileged,  provided  that  there  be  other 
sufficient   distress   upon   the    premises. 
See  1  Inst.  47,  a.  b. ;  Fenton  v.  Logan, 
9  Bingh.  676;  Gorton  v.  Falkner,  4  T. 
R.  565.     It  is,  however,    settled,   that 
beasts  of  the  plough  may  be  distrained 
for  poor  rates,  though   there  are  other 
distrainable  goods  on  the  premises,  more 
than  sufficient  to  answer  the  value  of 
the   demand,  Hutchins   v.  Chambers,  1 
Burr.  579.     Tiiis  decision  proceeded  on 
the   analogy  between   such   a    distress 
and  an   execution.     It  must  further  bo 
observed,  with  respect  to  things  privi- 
leged sub  modo,  than  even  though  there 
be  a  sufficient  distress  besides,   yet  if 
that  distress   consist  of  growing  crops, 
which  are  only  distrainable    by  statute 
and  are  not  immediately  productive,  the 
landlord  is  not  bound  to  avail  himself  of 
it,  but  may  distrain  the  things  privileged 
sub  modo,  Piggott  v.   Birtles,  1   M.  & 
Wels.  441.     And  possibly  tiie  principle 
of  this  decision  may  hereafter  be  thought 
to  extend    to   every  case  of  a  distress 
given  by  statute  but,  not  liable  to  pre- 
cisely the  same  rules  of  treatment  as  a 
distress  at  common  law. 

To  the  above  exceptions  it  may  be 
well  to  add,  that  if  a  landlord  either  ex- 
pressly or  impliedly  consent  that  chat- 
tels placed  by  a  stranger  on  the  ten- 
ant's land  shall  bo  exempt  from  his  dis- 
tress, it  appears  from  Ilorsford  v.  Web- 
ster, 5  Tyrwh.  409,  that  he  will  be  a. 
trespasser  if  he  distrain  them.  In  that 
case,  Parke,  B.,  differed  from  the  rest 
of  the  court,  conceiving  that  the  con- 
sent was  not  made  out  under  the  cir- 
cumstances. 


In  Reynolds  v.  Shuler,  5  Cowen,  323,  the  Supreme  Court  of  New  York 
held,  that  things  affixed  to  the  freehold  could  not  be  distrained,  although 


388  S  M  I  T  H '  S.; IC^^^jij^-jtS'^  S.  E  S. 

belonging  to  that. class  of  fixtures  wluchtlie  tenant  has  a  right  to  remove , 
on  leaving  the  premises,  and  that  this  exemption  continued  after  they  were 
taken  down,  provided  it  was  for  a  temporary  purpose,  and  vvithout  the 
intention  of  permanently  doing  a\va,y  with  their- connexion  with  the  realty; 
They  held,  however,  that  if  sucK  Connexiori  iyere '  severed,  either  with  the 
view  of  applying  them  to  some  purpose. io  w.hich fhey  woqjd  aio  lojigey 
have  the  character  of  fixtures,  or  with  the  view  of  removing-  theni  from  the 
premises  altogether,  they  became  at  once  mere  chattels,  and  losing  the 
protection  which  had  before,  been  extended  to  them,  might  either  be  dis- 
trained on  the  land,  or  be  followed  elsewhere,  for  the  purpose  of  distress, 
although,  in  the  hands  of  a  bona  fide  mortgagee  for.  valxiej,  who  had 
removed  them,  with  the  view  of  securing  himself  under  his  mortgage.  The 
court  Avere  of  opinion  that  the  mortgage,  though  "bona  fide,  was  not  a  sale, 
and  did  not  bring  the  property  within  the  rule  that  goods  sold  and  removed 
in  good  faith,  so  as  to  become  the  properly  of  a  stranger^  cannot  be  dis- 
trained off  the  premises,  under  the  enactments  giving  that  right  as  against 
the  lessee  ;  and  they  likewise  held^that  the  right  of  distress  attached  to  the 
'fixtures,  upon  their  severance  from  the  freehold,  so  as  not  to  be  defeated  by 
their  removal  from  the  premises. 

This  case  would  seem  to  prove  undeniably,  that  if  the  tenant  take  down 
fixtures  exempt  from  distress,  during  the  term,  or  after  it  expires,  unless 
with  the  view  of  replacing  them  as  fixtures,  the  landlord  may  distrain  therri 
either  on  or  off  the  demised  premises.  ,  Fixtures  appear,  therefore,  to  be  a- 
permanent  security  for  rent,  which  the  tenant  cannot  sever  or  remove,,  until 
the  rent  is  fully  paid,  without  exposing  them  to  a  distress  ;  allhoug^h  on  the 
other  hand,  the  landlord  cannot  distrain  them  until  they  are  severed.  As 
soon  as  the  tenant  gives  up  the  possession  of  the  premises,  the  fixtures 
which  he  leaves  behind  become  the  property  of  the  landlord,  as  part  of  the 
freehold^  and  the  tenant  can  no  longer  maintain  any  form,  of  action'  to 
recover  them. 

This  restriction;  6n. the  right  of  distres's,was  enforced  in  tlie  recent  case  of 
Darby  v.  Harris,  t  Q,.  B.,  695,  with  regard  to  a  kitchen  range,  grates  and 
a  register  stove,  which  were  annexed  to  the  freehold  in  the  ordinary  raanner-j 
although  admitted  to  belong  to  that  class,  of  fixtures  which  the  tenant  is 
entitled  to  remove  at  pleasure.  The  court  were  of  opinion,  that  the  com- 
mon law  in  this  respect  was  not  altered,  although  the  right  of  the  tenant  to 
a  return,  had  been  curtailed-  by- the  statutes  giving  the  right  of  Sale  to;, 
the  landlord,  and  authorizing  him-  to  impound  the  goods  on  the  premises 
until  sold.  It  is  in  fact  obvious  that  the  severance  of  a  fixture  must  pro- 
duce the  same  injury  to  the  tenant,  whether  it  actually  be  sold  or  returned 
to  him  after  being  held  as  a  pledge,  since,  in  either  case,  that  portion  of  .its 
value  which  consists  in  adaptation  to  its  position  must  necessarily  be 
Miestroyed.  7 

.Where  things  annexed  to  the  freehold  tiave  been  wrongfully  severed 
and  removed  under  colour  of  a  distress,  their  value  may  be  recovered  in 
trover.  Although  the  plaintiff  must  treat  them  as  chattels  in  his  declara- 
ration,  he  will  not  be  precluded  from  showing  that  they  became  such  by 
the  tortious  act  of  the  defendant,  and  were  originally  fixtures,  and  therefore^ 
insusceptible  of  being  distrained.  •    .  '  .   '■. 

.,  Of  the  difFereot' classes  pf  things  eiiunierat^^  by  ^WltxEs,  C.  J.^rilo;. 


■  si^'p3'(y^'T^:.'k''A.y(^^i^i^-'''  389 

Simpson  Y.  Harlopp,  asgROt  teing  ar^raifTabte^^^^'coUrt^^^ 
have  repeatedly  recog-nised  the  cxemplioiV  of  the  second'.  In  Brown  v.: 
Sims,  17  Sergeant  and  Rawle,  138,  it  was  held  in  that  state  hy  the  Supreme 
Court,  that  goods  deposited  in  ii  warehouse  for  storage,  were  not  liable  to 
be  distrained  for  rent.  In  the  subseqaent  case  of  Riddle  v.  Welden,  5 
Wharton,  9,  a  more  doubtful  point  was  decided  before  the  'same  tribunal. 
The  goods  of  the  plaintiff,  who  boarded  in  the  lodging-honse  of  one  Mary 
HarrisoQ,  having  been  distrained  by  the  defendant  for  rent  due  by  her,  an 
action  of  replevin  was  brought  to  recover  them;  which  was  held  good  by 
the  court  on  the  ground  that  chattels  so  situated,  were  within  the  reason  of 
law  which  protected  the  property  of  a  stranger  tarrying  in  an  inn  from 
being  distrained  for  a  rent  due  on  account  of  the  premises.  It  may,  perhaps, 
be  observed  on  this  case,  that  the  distinction  between  a  Jodging-house  and 
an  inn  has  always  been  strongly  marked  in  the  English  cases ;  and,  among 
others,  in  Parkhurst  v.  Foster,  1  Salkeld,  387;  audit  may  be  asked,  if  the 
goods  of  a  lodger  in  a  boarding-house,  are  put  on  the  sanre  footing  with  those 
of  a  giiest  in  an  inn,  as  it  respects  a  distress  for  rent,  whether  they  are 
equally  liable  with  the  ktter,  to  be  detained  for  debts  due  by  the  owmet  to 
the  keeper  of  the  house.  In  Riddle  v.  Welden,  the  Chief  Justice  asserted 
■the  principle  of  Brown  v.  Sims,  to  be  that  "things  put  upon  the  rented- 
premise's  by  a  customer,  in  the  way  of  the  tenant's  business,  were  exempt 
from  distress."  The  principle  was  held  to  be  a  growing  one,  and  to  embrace 
every  case  that  "  could  at  all  be  brought  within  it." 

■Irithe  prior  case  of  Brown  v.  Sims,  it  was  said  by  the  same  authority, 
tKat"where  the  course  of  the  business  must  necessarily  put  the  tenant  in 
possession  of  the  property  of  his  customers,  it  would  be  against  the  dictates 
of  conscience  to  allow  the  landlord  to  use  him  as  a  decoy,  and  pounce  on 
whatever  should  be  brought  within  his  grasp." 

The  exemption  from  distress  of  goods  belonging  to  a  stranger,  placed  on 
the  premises  in  the  way  of  the,  tenant's  trade  or  profession,  was  also  enforced 
in  South  C^a  roll  ha  in  the  case  of  a  horse  at  a  livery  staVle,  Himely  v.  Wyatt, 
-^  M'Cord,  39;  and  for  goods  sent  to  an  auction  store,  Youngblood  v. 
Jjansy,  1  Bay,  102.  The  same  principle  has  been  recognised  in  New 
lersey,  Avh ere  goods  were  left  at  a  fulling  mill  to  be  wrought;  Haskins  v. 
Paul,  4  Halsted,  113.  In  like  manner  it  was  held,  in  Walker  v.  Johnson, 
4  M'Cord,  552,  that  goods  belonging  to  a  stranger  in  the  ware-rooms  of  a 
factor  or  commission  merchant,  were  not  distrainable,  and  the  decision  was 
placed  on  the  groiind  that  the  nature  of  the  business  carried  on  by  the 
•'tenant  was  such  as  to  rebut  the  presumption  which  would  otherwise  arisen 
that  the  personal  property  found  in"  his  possession  belonged  to  him,  and  to 
put  the  landlord  upon  inquiry  as  to  the  actual  facts  of  the  case. 

The  courts  in  England  have  adhered  to  the  rule  laid  down  in  Muspratt 
V. -Gregory,  above  cited  (page  386,)  and  hold  that  to  produce  an  exemption 
from  distress,  the  goods  must  not  only  have  been  left  on  the  premises 
in  the  course  of  trade^and  for  the  benefit  of  the  trade  of  the  tenant,  but  for  the 
purpose  of  being  actually  made  the  subject-matter  of  his  particular  labour  or 
oejcGpaticm  ;  and  hence  it  was  determined  in  the  case  of  Joule  v.  Jackson, 
7  M.  ,&  VV'.  450,  that  casks  belonging  to  a  brewer,  which  were  sent  full  of 
beer  to  a  public  house,  were  liable  to^  be  distrained  while  on  the  premises, 
although  left  there  for  the  convenience  of  the  intik<ieper,  and  with  the  view 


390  smith's   leading   cases. 

of  being  returned  as  soon  as  the  beer  was  consumecI^j^But  materials  furnished 
to  the  tenant  in  order  to  be  worked  up  in  the  way  of  his  trade,  as  in  the 
case  of  silk  delivered  to  a  silk  weaver  by  his  employer,  for  the  purpose  of 
being  manufactured  into  velvet,  will  come  strictly  within  the  protection 
afforded  to  every  thing  in  the  possession  of  a  party,  as  the  subject-matter 
upon  or  about  which  his  care  or  labour  is  to  be  exercised  in  the  prosecution  of 
his  regular  business.  Gibson  v.  Ireson,  3  d.  B.  39.  On  this  ground  it  was 
held  in  the  recent  case  of  Findon  v.  M'Larren,  6  Q,.  B.  891,  that  a  car- 
riage left  for  sale  in  the  hands  of  a  coachmaker,  part  of  whose  ordinary 
business  consisted  in  sales  on  commission,  was  not  liable  to  be  taken  as  a 
distress  for  the  rent  of  the  premises  occupied  by  him. 

The  general  doctrine  that  goods  found  on  the  premises,  and  not  coming 
within  some  one  of  the  recognised  exemptions  from  distress,  are  liable  to  be 
distrained  even  when  known  to  belong  to  a  stranger,  was  fully  sustained  in 
the  case  of  Reeves  v.  M'Kenzie,  1  Bailej^  497,  where  the  rule  that  a  land- 
lord has  a  right  to  distrain  goods  which  he  knows  to  belong  to  a  stranger, 
was  fully  sustained  ;  and  the  same  law  was  admitted  by  the  Supreme  Court 
of  New  Jersey,  in  delivering  their  judgment  in  the  case  of  Haskins  v.  Paul, 
already  cited,  and  by  that  of  New  York  in  Spencer  v.  M«Gowen,  13 
Wendell,  256.  It  has,  moreover,  been  recognised  in  all  the  Pennsylvania 
cases,  although  somewhat  circumscribed  in  extent;  and  it  was  expressly 
decided  by  the  Supreme  Court  of  that  state  in  Kessler  v.  M'Conachy,  1 
Rawle,  435. 

It  cannot  however,  be  denied,  that  the  courts  of  this  country  have  on  the 
whole  leant  against  the  right  of  distraining  goods,  not  the  property  of  the 
tenant ;  but  it  must  be  observed,  that  to  abrogate  it  altogether,  would  lead 
in  one  particular  to  a  result  not  sufficiently  adverted  to.  For  independ- 
ently of  the  danger  of  fraud  which  would  exist,  and  the  delay  which  would 
inevitably  occur,  were  the  tenant  permitted  to  set  up  as  a  defence  to  a 
distress  for  rent  undeniably  due,  a  replevin  grounded  on  an  allegation  of 
title  to  the  goods  seized,  in  a  stranger  ;  the  abolition  of  the  right  to  distrain 
all  goods  upon  the  premises,  and  not  exempt  from  distress  at  common  law, 
would  prevent  the  landlord  from  distraining  the  goods  of  an  underlessee, 
either  of  the  whole,  or  part  of  the  premises.  Such  underlessee,  not  being 
either  in  privity  of  contract  or  estate  with  the  lessor,  is  not  liable  to  him  for 
the  rent  in  any  form  of  action  ;  Quackenboss  v.  Clark,  12  Wendell,  555  ; 
and  cannot  properly  be  said  even  to  owe  it  to  him,  so  that  being  a  mere 
stranger,  the  only  reason  of  the  liability  of  his  goods  to  a  distress,  when  on 
the  demised  premises,  is  that  while  there,  they  may,  like  the  property  of 
any  other  stranger,  be  distrained.  If  the  right  of  distraining  a  stranger's 
goods  be  either  refined  away,  or  abrogated  by  judicial  decisions,  it  will 
follow  that  any  lessee,  by  redemising  the  whole  property  which  has  passed 
to  him  under  a  lease,  and  reserving  to  himself  but  a  single  day  of  his  original 
term  as  a  reversion,  may  altogether  defeat  the  right  of  distress.  In  fact, 
it  may  perhaps,  be  doubted  whether  the  principle  laid  down  in  Brown  v. 
Sims,  that  where  the  landlord  knows  or  consents  to  the  introduction  of  a 
stranger's  goods  on  the  premises,  as  a  consequence  of  the  business  acts  of 
of  the  tenant,  such  goods  shall  not  be  distrained,  would  not  in  strictness 
embrac!  the  case  of  an  under-lessee,  placed  on  the  premises  by  the  contract 
of  the  first  lessee,  with  the  express  or  implied  consent  of  the  landlord.     It 


OMICHUND     V.     BARKER.  391 

would  seem,  at  all  events,  that  where  an  underlessee  has  fairly  paid  his 
portion  of  the  rent  to  the  principal  tenant,  all  tlie  equitable  considerations 
which,  with  or  without  propriety,  have  been  so  much  insisted  on  in  the 
case  of  other  strangers,  apply  to  him. 

The  exemption  of  things  in  actual  use  from  distress,  was  held  in  Field  v. 
Adames,  1  Ad.  &  El.  6-19,  to  apply  for  the  protection  of  a  horse,  harness, 
and  shovel,  averred  in  the  replication  to  have  been  at  the  time  of  the  seizure 
in  the  possession  of  the  plaintiff,  under  his  personal  care,  and  then  actually 
in  use  by  him,  although  there  was  no  averment  that  the  use  was  such  that 
the  attempt  to  distrain  would  lead  to  a  breach  of  the  peace.  But  in  the 
subsequent  case  of  Bunch  v.  Kennington,  1  Q,.  B.  670,  similar  averments 
were  held  insuflicient  in  the  case  of  a  dog,  perhaps  from  the  difference 
with  regard  to  the  inferences  as  to  proximity  and  manual  possession,  to  be 
drawn  from  the  allegation  of  use  in  the  two  cases. 

That  cocks  or  sheaves  of  corn  are  not  distrainable,  was  determined  in 
Given  v.  Blann,  3  Blackford,  64,  where  it  was  held  that  the  reason  of  the 
exemption  as  founded  on  the  unsusceptibility  of  being  returned  in  the  same 
state  as  Avhen  taken,  continues  to  hold  good  notwithstanding  the  change  in 
the  law  under  which  a  distress  must  be  sold,  instead  of  being  held  as  for- 
merly as  a  pledge,  since  the  tenant  is  still  entitled  to  replevy,  or  redeem 
them  before  sale. 

The  courts  of  South  Carolina,  in  the  case  of  Hamilton  v.  Ready,  3  M'Cord, 
38,  recognised  the  protection  which  the  common  law  extended  to  all  pro- 
perty in  custodia  legis,  and  held  that  goods  once  levied  on  under  an  execu- 
tion, could  not  be  distrained. 

This  principle  has  also  been  applied  in  Pennsylvania,  where  the  levy 
had  been  under  a  writ  of  foreign  attachment;  Pierce  v.  Scott,  4  Watts  & 
Sergeant,  344  ;  and  in  New  York,  to  the  case  of  chattels  seized  under  a  writ 
of  replevin,  although  left  on  the  demised  premises,  Milcken  v.  Silye,  6  Hill, 
623.  H. 


^OMICHUND  i;.  BARKER.      [    *195    ] 


HIL.  18  G.  2.— IN  CHANCERY. 

[reported  willes,  538.] 

Tlie  depositions  of  witnesses  professinfif  tlic  Gentoo  religion,  who  were  sworn  according' 
to  fhe  ceremonies  of  tlieir  religion,  taken  under  a  commission  out  of  Chancery,  admit- 
ted to  be  read  as  evidence. 

Several  persons  resident  in  the  East  Indies,  and  professing  the  Gentoo 
religion,  having  been  examined  on  oath  administered  according  to  the  cere- 
monies of  their  religion,  under  a  commission  sent  there  from  the  Court  of 
Chancery,  it  became  a  question  whether  those  depositions  could  be  read  in 
evidence  here ;  and  the  Lord  Chancellor  conceiving  it  to  be  a  question  of 


392  ,  fi.iSrt!i/tt/;d^::i^^^ijgSTft^^^^ 

coosider&^We .  i japosta  efce  v  ^des  i  r ed  -t  h  e.  as^TStlti«5^?:f^^Ci?e'^  tlorS.  i3tii  ef -  J  bst  ice, 
B.  R.,  Willes,  Lord  Chief  Justice,- jG.B.,  and  the  LordChiefBaroTi  Parker, 
who,  after  hearing  the  case  argued,  were  unanimously  of  opitjioa  tjiat.th^ 
depositions  ought  to  be  read. 

The  case  is  shortly  reported  in  1  Wils,  84,  and  more  fully  in  1  Alk.  21. 
The  following  opinion  was  delivered  by  Willes,  Lord  Chief  Justice,  C.  B.' 
«I  could  satisfy  myself  by  merely  saying  that  as  to  the  present  question  I 
am  of  the.  same  opinion  as  the  Lord  Cliief  Baron;  but  as  this  is  in  a  great 
measure  a  new  case,  as  it  is  a  question  of  great  importance,  and  as  so  much 
has  been  said  by  the  counsel  on  both  sides,  I  believe  it  will  be  expected  that 
I  should  give  my  reasons  for  the  opinion  which  I  am  going  to  give,  though 
in  the  course  of  my  argument  I  must  necessarily  touch  upon  many  things 
that  have  been  already  better  expressed  by  the  Lord  Chief  Baron.    ■ 

Though  it  be  necessary  only  to  give  my  opinion  whether  the  depositions 
r*iqfi1  t^^^^i^  J"  ^^6  present  case  can  be  read  or  not,  *yet  it  may  be  proper. 
L  -^  in  order  to  come  at  this  particular  question,  in  the  first  place  to  con- 
sider the  general  question,  whether  an  infidel,  I  mean  one  who  is  not  a 
Christian,  for  in  that  sense  Lord  Coke  certainly  meant  it,  can  be  admitted 
as  a  witness  in  any  case  whatsoever.  If  I  thought  with  my  Lord  Coke  that 
he  could  not,  I  must  necessarily  be  of  opinion  that  the  depositions  in  the 
present  case  could  not  be  read  as  evidence.  On  the  other  hand,  if  I  thought 
that  infidels,  in  all  cases  and  under  all  circumstances,  ought  to  be  admitted 
as  witnesses,  the  consequence  would  be  as  strong  the  other  way,  that  these 
depositions  ought  to  be  read.  But  if  I  should  be  of  opinion  (and  I  shall 
certainly  go  no  further)  that  some  infidels,  in  some  cases  and  under  some 
circumstances,  may  be  admitted  as  witnesses,  it  will  then  remain  to  he  con- 
sidered, whether  these  infidels,  who  are  examined  in  the  cause,  under  the 
circumstances  in  which  they  appear  in  this  court,  are  legal  witnesses  or 
not. 

As  to  the  general  question.  Lord  Coke  has  resolved  it  in  the  negative,  Co. 
Lit.  6,  b,  that  an  infidel  cannot  be  a  witness;  and  it  is  plain  by  this  word 
«'  infidel"  he  meant  Jews  as  well  as  Heathens,  that  is,  all  who  did  not  be- 
lieve the  Christian  religion.  In  2  Inst.  507,  and  many  other  places,  he 
calls  the  Jews  infidel  Jews;  and  in  the  4  Inst.  155,  and  in  several  other 
passages  of  his  books,  he  makes  use  of  this  expression,  infidel  pagans,  which 
plainly  shows  that  he  comprises. both  Jews  and  Heathens  under  the  word 
infidels  ;  and,  therefore,  Serjeant  Hawkins  (though  a  very  learned  pains- 
taking man)  is  plainly  mistaken  in  his  History  of  the  Pleas  of  the  Crown, 
2  vol,  p,  434,  where  he  understands  Lord'Coke  as  not  excluding  the  Jews 
from  being  witnesses,  but  only  Heathens.  But  Lord  Chief  Justice  Hale 
understood  this  in  another  sense  in  that  remarkable  passage  of  his,  which 
I  shall  mention  more  particularly  by  and  by.  I  sjiall,  therefore,  take  it  for 
granted  that  Lord  Coke  made  use  of  the  word  infidels  here  in  the  general 
sense  ;  and  that  will,  I  think,  greatly  lessen  the  authority  of  Avhat  he 
says  ;  because  long  before  his  time,  and  of  late,  almost  ever  since  the  Jews  . 
have  returned  into  England,  they  have  heen  admitted  to  be  sworn  ias  wit-, 
nesses.  But,  I  think,  the  counsel  for  the  defendant  seemed  to  mistake  the 
reason  upon  which  Lord  .Coke  went.  Fer  he  certainly  did  not  go  upon 
.^  this  reas.oh,  that  an  infidel  could  not  take  a  *Chri6tian  oath,  and  that 
L  **^:-^- the  fatmof  the  oath  caia-not  be  altered  but  hy-aclof  paThament^  but 


-  6  M  I  C  H  U  N  D     V.     B  A  R  K  E  R.  393 

VpOatJikreasQWtte.U^ftr-l^  thuik^/a' much  WOt's'e,  that  an  infidel  was  not 
fidedignus,  nor  woptby  of  credit ;  for  he  puts  them  in  company  and  upon 
the  level  witli  stigmatized  and  infamous  pensons.-  -And  that  this  was. his 
meaning  appears  more  plainly  by  what  he  says  in  Calvin's  case,  T  Go.  17, 
bf  that  "all  infidels  arc  in  law  pe victual  enemies;  for  between  them^  as 
■--^iih  the  devils,  whoso  subjects  they  are,  and  the  Christian,  there  is  per- 
■,HeLaal  hos-tiiity,  and  can  be  no  peace.  For  as  the  apostle  saith,  2  Cor.  6^, 
V'ilo;  "(dure  conventioChristi  cum  Belial?'  Q,ua3  pars  fideli  cum  infi- 
deli  ?  -  Infideles  sun-t  Christi  et  Christianorum  -rnimici.  And  herewith 
agreeth  the  book  in  12  lien.  8,  fol.  4,  where  it  is  holden  "that  a  ijagan 
cannot  maintain  any  action  at  all."  But  this  notion,  though  advanced  by 
so  great  a  man,  is,  I  think,  contrary  not  only  to  the  scripture  but  to  common 
sense  and  common  humanity.  And  I  think  that  even  the  d-evils  themselves, 
^whose  subjects,  he  says,  the  heathens  are,  cannot  have  worse  principles  ; 
■.:iB{Dd' besides  the  irreligion  of  it,  it  is  a  most  impoliliondtion,  and- would  at 
.mice  destroy  all  that  trade  and  commerce,  from  which  this  nation  reaps 
such  great  benefits.  We  ought  to  be  thankful  to  Providence  for  givingns 
the  light  of  Christianity,  which  ho  has  denied  to  such  great  numbers  of  his 
creatures  of  the  same  species  as  ourselves.  We  are  commanded  by  our 
Saviour  to  do  good  unto  all  men,  and  not  only  unto  those  who  are  of  the 
household  of  faith.  And  St.  Peter  saith,  Acts  10,  v.  34,  35,  that  "God  is 
no  respecter  of  persons,  but  in  every  nation  he  that  feareth  him  and  worketh 
righteousness  is  accepted  with  him."  If  is  a  httle,  mean,  narrow  notion  to 
suppose  that  no  one  but  a  Christian  can  be  an  honest  man.  God  has 
rirftplanted  by  nature  on  the  minds  of  all  men  true  notions  of  virtue  and  vice, 
ef  justice  and  injustice,  though  heathens  perhaps  more  frequently  act 
contrary.tothose  notions  .than,  Christians,  because  they  have  not  such  strorvg- 
motives  to  en-force  them.  But,  as  St.  Peter  says,  there  are  in  every  natiort 
inen  tiiat  fear  God  and  work  righteousness;  such  men  are  certainly  fide 
digni,  and  very  proper  to  be  admitted  as  witnesses.  I  will  not  repeat  what 
was  said  by  Sir  George  Treby,  in  the  case  of  monopolies,  in  tiie  Slate  Trialsj 
vol.  7,  p.  502,  of  this  notion  of  Lord  Coke's,  and  which  was  cited  p^jngT 
by.*"one  of  the  counsel ;  but  I  think  that  it  very  well  deserves  Over}^  *-  ^ 
epithet  that  he  has  bestowed  on  it.-  ihave  dwelt  the  longer  upon  this  say- 
ing of  his,,  because  f  think  it  is  the  only  authority  ihat  can  be  met  with  to 
^support  this  gen-e'rat  assertion  that  an  infidel  cannot  be  a  witness.  For 
though  it  may  be  founded  upon  some  general  sayings  in  Bracton,  Fleta, 
and  Briton,  and  other  old  books,  those  I  think  of  very  little  weight,  and  there- 
fore shall  not  repeat  them  ;.  first,  because  they  are  on^y  general  dicta ;  a,rid 
JlJthe  next  place,  because,  these,  great  authors  lived  in  very  bigoted  popish 
times,  when  we  carried  qn  very  little  trade,  except  the  trade  of  religion,  and 
co».js;equently  our  notions  wore  very  narrow,  and  such  as  I  hope  will  n^ver 
prei^il  again  in  this  country.  As  to  what  is  said  by  that  great  man  the 
Lord  Chief  Justice  Fortescue,  in  his  book  Do  Laudibus,  b,  20,  that  wit- 
nesses are  to  be  sworn  on  the  Holy  Evangelists ;  he  is  speaking  only  of  the 
oath  of  a  Christian,  and  plainly  had  not  the  present  question  at  all  iw  his  con- 
templaiioa..  To  this  assertion  of  my  Loid  Coke's,  besides  what  I  have  already- 
said,  L  wi-jl  oppose  the  practice  of  this' kingdom,  beforo  the  Jew.$  wrere 
expelled  out  of  it  by  the  Stat.  18  E.  1.  For  it  is  plain,  both  from  Madox's 
History  of  the  Excliequ-er,  p.  167  and  174,.  and  from  Sold.  vol.  2,  p.  1409, 


394  smith's   leading   cases. 

that  the  Jews  here,  in  the  time  of  King  John  and  Henry  the  Third,  were 
both  admitted  to  be  witnesses,  and  hkewise  to  be  upon  juries  in  causes 
between  Christians  and  Jews,  and  that  they  were  sworn  upon  their  own 
books  or  their  own  roll,  which  is  the  same  thing.  I  will  likewise  oppose 
the  constant  practice  here  ahnost  ever  since  the  Jews  have  been  permitted 
to  come  back  again  into  England;  viz.,  from  the  19  Car.  2,  (when  the 
cause  was  tried  which  is  reported  2  Keble,  314,)  down  to  the  present  times, 
during  which  I  believe  not  one  instance  can  be  cited  in  which  a  Jew  was 
refused  to  be  witness,  and  to  be  sworn  on  the  Pentateuch.  To  this  assertion 
1. shall  likewise  oppose  the  very  great  authority  of  Lord  E-Tale,  2  vol.  279. 
And  though  this  has  often  been  mentioned  by  the  counsel,  it  is  so  full  of 
law,  of  good  sense,  and  the  spirit  of  Christianity,  that  I  think  it  cannot  be 
repeated  too  often  ;  decies  repetita  placebit.  "  It  is  said  by  Lord  Coke  that 
an  infidel  is  not  to  be  admitted  as  a  witness  ;  the  consequence  of  which 
r*TQO~i  would  be  that  a  Jew,  who  only  *owns  the  Old  Testament,  could  not 
L  -^  be  a  witness.  But  I  take  it  that  although  the  regular  oath,  as  it  is 
allowed  of  by  the  laws  of  England,  is  tactis  sacrosanclis  Dei  Evangeliis, 
which  supposeth  a  man  to  be  a  Christian,  j'et  in  cases  of  necessity,  as  in 
foreign  contracts  between  merchant  and  merchant,  which  are  many  times 
transacted  by  Jewish  brokers,  the  testimony  of  a  Jew  tacto  libro  legis  Mosaicee 
is  not  to  be  rejected,  and  is  used,  as  I  have  been  informed,  among  all  nations. 
Yea,  the  oaths  of  idolatrous  infidels  have  been  admitted  by  the  municipal 
laws  of  many  kingdoms,  especially  si  juraverint  per  verum  Deum  creato- 
rem  ;  and  special  laws  are  instituted  in  Spain  touching  the  forms  of  the 
oaths  of  infidels  ;  vid.  Covarruviam,  tom.  1,  p.  1,  de  juramenti  forma."  And 
he  mentions  a  case  where  it  would  be  very  hard  if  such  an  oath  should  not 
be  taken  by  a  Turk  or  Jew,  which  he  holds  binding ;  «'  for  possibly  he  might 
think  himself  under  no  obligation  if  he  were  sworn  according  to  the  usual 
form  of  the  Courts  of  England  :  but  then  it  must  be  agreed  that  the  credit  of 
such  testimonjr  must  be  left  to  the  jury."  Upon  this  citation  of  Lord  Hale, 
out  of  Covarruviam,  I  shall  say,  once  for  all,  that  I  do  not  lay  any  great 
stress  on  the  citations  out  of  the  civil  law  books;  not  only  because  I  think 
the  present  case  does  not  want  them,  but  likewise  because  they  only  show 
that  there  are  particular  laws  and  edicts  in  other  countries  which  determine 
this  question  there  ;  and,  therefore,  they  are  not  so  applicable  to  the  present 
case,  since  it  is  not  pretended  that  there  is  any  act  of  parliament  which  has 
settled  this  matter.  This  use  indeed,  and  this  only,  can  be  made  of  these 
citations,  to  show  that  the  opinion  of  the  legislature  in  other  countries  has 
been  for  admitting  this  sort  of  evidence. 

The  last  answer  that  I  shall  give  to  this  assertion  of  Lord  Coke's,  as 
explained  in  Calvin's  case,  are  his  own  words  in  his  4th  Inst.  p.  155. 
"Foedus  pacis  or  commercii,"  saith  he,  "though  not  mutui  auxilii,  may  be 
striken  between  a  Christian  prince  and  infidel  pagan  ;  and  as  these  leagues 
are  to  be  established  by  oath,  a  question  will  arise  whether  the  infidel  or 
pagan  prince  may  swear  in  this  case  by  false  gods,  since  he  thereby  ofFen- 
deth  the  true  God  b}'^  giving  worship  to  false  gods.  This  doubt,"  saith  he, 
^  -.  "  was  moved  by  Publicola  to  St.  Augustine,  who  thus  resolveth  the 
L  -'  *same  :  » He  that  taketh  the  credit  of  him  who  sweareth  by  false 
gods  not  to  any  evil  but  good,  he  doth  not  join  himself  to  that  sin  of  swear- 
ing by  devils,  but  is  partaker  with  those  lawful  leagues,  wherein  the  other 


OMICHUND     V.     BARKER.  395 

keepeth  his  faith  and  oath  ;  but  if  a  Christian  should  any  waj's  induce 
another  to  swear  by  them,  he  would  grievously  sin.  But  seeing  that  such 
deeds  arc  warranted  by  the  word  of  God,  all  incidents  thereto  are  permit- 
ted.' "  This  is,  I  think,  as  inconsistent  as  possible  with  his  notion  that  an 
infidel  is  not  fide  dignus,  and  a  full  answer  to  what  he  said  in  Calvin's 
case  on  this  head  ;  and,  therefore,  I  shall  leave  him  here,  having,  I  think, 
quite  destroyed  the  authority  of  his  general  rule,  that  none  but  a  Christian 
ought  to  be  admitted  as  a  witness. 

I  shall  now  proceed  to  explain  the  nature  of  an  oath,  which  will,  I  think, 
contribute  very  much  towards  the  determination  of  the  general,  as  well  as  the 
present  question.  If  an  oath  were  merely  a  Christian  institution,  as  baptism, 
the  sacrament,  and  the  like,  I  should  be  forced  to  admit  that  none  but  a  Chris- 
tian could  take  an  oath.  But  oaths  were  instituted  long  before  Christianity 
was  made  use  of  to  the  same  purposes  as  now,  were  always  held  in  the 
highest  veneration,  and  are  almost  as  old  as  the  creation.  Juramentum, 
according  to  Lord  Coke  himself,  nihil  aliud  est  quam  Deum  in  testem  vo- 
care  ;  and,  therefore,  nothing  but  the  belief  of  a  God,  and  that  he  will* 
reward  and  punish  us  according  to  our  deserts,  is  necessary  to  qualify  a 
man  to  take  the  oath.  We  read  of  them,  therefore,  in  the  most  early  times. 
If  we  look  into  the  sacred  history,  we  have  an  account  in  Genesis,  c.  26,  v. 
28  and  .31  ;  and  again  Genesis,  c.  31,  v.  53,  that  the  contracts  betwixt 
Isaac  and  Abimelech,  and  between  Jacob  and  Laban,  were  confirmed  by 
mutual  oaths  ;  and  yet  the  contracting  parties  were  of  very  different  reli- 
gions, and  swore  in  a  different  form.  It  would  be  endless  to  cite  the  places 
in  the  Old  Testament  where  mention  is  made  of  taking  an  oath  upon 
solemn  occasions,  and  how  great  a  reverence  was  always  paid  to  it.  I  shall 
only  take  notice  of  three  :  one  in  Numb.  30.  2,  "  He  that  sweareth  an  oath 
bindeth  his  soul  with  a  bond  ;"  another  in  Deut.  c.  6,  v.  13,  "  Thou  shalt 
fear  the  Lord  thy  God,  and  swear  by  his  name  ;"  and  another.  Psalms  15, 
V.  5,  where  a  righteous  man  is  described  in  this  *manner,  "  One  ^o.yi-i 
who  sweareth  unto  his  neighbour  and  disappointeth  him  not,  though  L  J 
it  were  to  his  own  hinderance." 

From  the  passages  of  the  New  Testament,  where  mention  is  made  of  an 
oath,  it  is  plain  that  it  continued  to  be  used  in  the  same  manner,  and  to  be 
had  in  the  same,  if  not  greater  veneration,  after  the  coming  of  our  Saviour. 
The  nature  of  an  oath  was  not  at  all  altered,  only  as  the  promise  of  rewards 
and  punishments  in  another  world  was  then  more  clearly  revealed,  the 
obligation  of  an  oath  grew  much  stronger,  and  those  who  were  really  Chris- 
tians were  under  a  greater  apprehension  of  breaking  it.  "An  oath  for 
confirmation,"  saith  St.  Paul,  "  is  an  end  of  all  strife."  Ileb.  c.  16.  "  And 
I  cannot  forbear  mentioning  one  passage  more  out  of  the  New  Testament, 
to  show  what  great  reverence  was  paid  to  an  oath,  even  by  the  most  wicked 
men;  and  under  what  great  apprehensions  they  were  of  breaking  it.  It  is 
in  Matt.  c.  14,  v.  6  to  9,  and  it  is  related  in  the  same  manner  by  St.  Mark, 
c.  6,  V.  23  to  20,  that  Herod  having  sworn  to  Ilerodias,  that  whatsoever  she 
asked  of  him  he  would  give  it  her,  though  he  was  exceeding  sorry  when 
she  asked  of  him  the  head  of  St.  John  the  Baptist,  yet  for  his  oath's  sake, 
and  the  sake  of  them  who  sate  with  him,  he  would  not  reject  her.  And  I 
cannot  help  likewise,  in  this  place,  though  a  little  out  of  course,  taking 
notice  of  what  is  said  by  Lactantius  on  this  subject,  that  some  in  his  time, 


596  ;"''•'  'kmi'iiW''s^%i^^^f^^':^^^^Pf. 

wh-Q.  vverq  SO  tei^y •wicked  as -ti^^-'l^^fee^^Ai^^evenr 'of  febrnmitting'  imrrdet; 
;yel,  Md  su-ch  a  veneration-.for-an  oath,  and  sucli  a  dread"  of  being  foresworn, 
that  wheu  purged  upon  their  oath,  the}'  durst  not  deri}^  the  foct." 

'If  we  look  into  profane,  authors,  we  shall  End  pretty  much  the  same 
account  of  an  oath,  I  shall  me-nlion  only  two  or  three  of  the  most  ancient 
S«d  best  of  them.  It  appear  m  several  places  in  Homer,  that  not  only  his' 
heroes,  but  likewise  his  gods,.wh«iti'  he  represents  as  gods  of  the' second' 
rank  subject  to  one  supreme  b.eing,  frequently  confirming  "their  promise  or 
threats  with  an  oath,  and  they  were  then  looked  upon  as  unalterable.  In 
two  places  in  Hesiod,  the  one  in  his  book  De  Generatioae  Deorum,  and  the 
other  in  another  book, -it  is  said  that  horrible  misfortunes  and  punishments 
will  befall  those  who  swear  falsely.  So- in  the  beginning' of  Pythagoras's 
Golden  Verses,"considering  an  p'ath  as  very  sacred  and  as  a  soft  of  religious 
•worship.  And  UieTGcles,"-who  is  vefy  la}^©'  ia  His  comment  on  this  pas- 
_^  ^.-^  sage,  says  %n  oath  was  looked-  upon  by  the  ancient  fathei-s  as  oris 
1-  -  -J  of  t-he  most  solemn  acts  of  religion.  I  &-hall  conclude  vvith  Cicero,' 
•who  never  speaks  of  an  oalh  but  with  the  greatest  reverence,  and  as  the 
strongest  tie  which  can  be  laid  upon  men.  Nullum  vinculum  (says  he)  ad 
astringendam  fidem  majores  ndstri  arCtius  jurejurando  crediderant.  To 
these  great  authorifies  I  shall  only  beg  leave  to  add  the  sentiments  of  two 
modem  writers,  but'Xvriters  of  very  great  credit;  I  mean  Crrotius  de  Jure 
Belli  et  Pacis,  lib.  2,  c.  13,  s.  U  His  words  are,  Apud  omhes  pdpulos  et 
ab  onmi  sbvo  circa  pollieitationes  promissa  et  contractus  maxima  semper  vis 
fuit  jurisjurandi.  And  Tillolson's  Sermons,  vol.  i.  p.  241,  where  he  says 
that  <'  It  is  the  general  practic-e  of  mankind,  which  has  universally  obtained 
in  all  ages  and  naiionsj  to  confirm  thirigs  by  an  oalh  in  order  to  the  ending 
of  differences." 

It. is  very  plain  from  what  I  have  said  that  the  substance  of  an  oath  has 
nothing  to  do  with  Christianity,  only  that  by  the  Christian  religion  we  are 
put  still  under/great  obligations  not  to  be  guilty  of  perjury;  the  forms 
indeed  of  an  oath  have  been  since  varied,  and  have  been  always  different  in 
all  countries  according  to  the  difltjrent  laws,' religion,- and- constitution' of 
those  couritries.  But  still  the  substance  is  the  same,  which  is- that  Ood  in 
all  of  them  is  called  upon  as  a  witness  to  the'  truth  of  what  we  gay.  Grotrus 
in  the  same  chapter,  sect.  10,  says,  forma  jurisjurandi  verbis  difiert,  re  con^ 
venit.  .  There  are  several  very  different  forms  of  oaths  mentioned  in  Selden, 
Yol.ii.  p.l47(l,  but  whatever  the. forms  are,  he  says,  tbat  is  meant  only  to- 
call  God  to- witness  the  truth  of  what-is  sworn  ;  "sit  Dens  testis,"  "  sit  Deus 
T^indcx,-"  or  f?  ita  to  Deus  adjuvet,-"  are  expressions'  pi-oniiscuously  made 
use  of  in.  Chrfstian  .countries  'and-.tn.  ours  that  oath  batb  been  frequeiiily 
varied  ;  as'«ila  te  Deus  adjuvet  taclis  sacrosanctis' t)ei  Evangeliis  ;"  "ita, 
&c.,-et,«ac"rbsancta  Dei  Evangelia  :"  "ita,  &c.,  et  omhes  sancti."  And 
now  we  keqi  cnly  these  words  in  the  oath,  "so  help  you  God,"  and  which 
indeed  a;re  the  only  mnterial  words,  and  which  any  heathen  wbo  believes  a 
Ood  Tfiay  inke  as  well  as  a  Christian.  The  kissing  the  book-here,  and  the 
touch-iiigihebramin's  hand  and  foot  at  Calcutta,  arid -many -otheT  different 
forms  whicb  are  made  use  .of  in  different  coiih-tries,  are  no  parr  of  the  oathj 
butafe  only  c'eremoriies  invented  to  add  the  greater  solemnity  to  the  taking 
jj-'.    •C^f'it,and  *tO;expT^^^  assent  of  the  party  to  the  oath,  when  he 

■  ■  ^  ■ -i:  do&5  n6t  repeat~^ei:€^t}i-  it3^f' : '  •btit4h€!\s^y€drin^  in  all  'of  thefti,  be 


0  M  I  C  n  U  N  D     V.     BAR  K  E  R.  397 

tjbe.exteTnaV  form  what  it -yvm,. is  calling  God  Almighty  to  be  a -witness  :  as 
^' clear  from  thtjse  words  of  our  Saviour,  in  Matt he.w^  chap.  23,  v.^2i  and 
22,  «'  Whoso  sweareih  by  the  temple  swearolh  by  it,  and  by  him  that 
dwellclh  therein  ;  and  he  that  sweareih  by  heaven,  sweaveth  by  the  throne 
of  God,  and  by.  him  that  sittelh  thereon."  A?,  to  what  was  said  by  the 
counsel,  that  Christianity  is  part  of  the  law.  of  England,  which  is  cerUainly 
:|rue  as  it  is  her?  established  by  laws  ;  andlhat,  tlie.Tofoxe,.to  admit,  the  oath 
of  a  heathex)  is  contrary  to  the  law§  of. England j  it  appears  from>hat.I 
■liave  already  laid  down  that  there  is  nothing  in  that  argument,  since:  an  oathi 
.^lio  more  a  jxirt- of  Christianity  than  of  every  other  religion  in  the  world. 
..;J!h,V?re  is  likewise  as  little  in  another  argument,  which  was  made  use  :0f, 
■'tifiatau  oath  cannot  be  aUered  but  by  act  of  parliament ;  for  the  form  of  au 
assertory  oath,  here-  hath  been  frequently  varied,  as  I  have  already  observed. 
i\)vl.  what  Lord  Coke  says  in  the  2. Inst.  47.9,  and  3  Inst.  165,  that  an  oath 
cannot  be  altered,  nor  a  new  one  im}Xised,  but  by  authority  of  parhament, 
plainly  relates  only  to  promissory  oaths,  or  oaths  of  oflice,  as  those  of  privy 
councillors,  judges,  sbenlls,  and  the  like,  and  not  at  all  to  oaths  taken  by 
witnesses.  As  to  the  passage  mentioned  out  of  the  Slate  Trials,  where  the 
Lord  Chief  Justice  asked  if  the  witness  were  a  Christian  or  not^  who 
'Appeared  to  be  othervyise  by  his.mien  and  dress,  and.  was  going. to  take,  the 
pomraon  oath,  and  as  to : what  ^yas  said  that  Lord  Chief  Justice  Eyre  once, 
refused  to  swear  a:  man  on  the  Evangelists,  who  was.  liot  a  Christian,  and. 
that  Lord  Chief  Baron  Gilbert  did  the  same  to  one,  who,  when  asked  whe- 
ther lie  believed  in  Christ,  declared  that  he  did  not  know  who  Christ  was; 
rery  little  can  be  inferred  from  either  of  these  instances,  since  it  does  not 
a|)pcar.that  the  fact,  to  which  the  witness  was  going  to  be  sworn,  arose,  in  a 
foreign  country^  or  that  it  vifas  a  mercantile  cause,  or  that  it;  was  e-ver  insist- 
ed on  by  the  counsel  tliat  the  witness  should  be  examined  in  any  olhe.r 
manner  than  in  the  common  form  upon  the  Holy  Evangelists. 

Having  now,  I  think,  sufficiently  shown  that  Lord  Coke's  rule  is  without 
fouiuialion,  either  in  Scripture,  reason,  or  law,  that  I  may  not  be  understood 


in  loo  genieraJ  a. sense^  .?J  shall- repeat  it  over  again,  that  I  only 


[*204l' 


give  ray.opioionth.fttsuo.h  infidels  who.  believe  a,  God,  and  that  he 
will  punish.  th?in  if  .tlie-y  swear  falsely,  in  sbme  .cases  and. .under  some  cir- 
c  urns  la  aces,  may  and  ought  to  be  admitted  as  witnesses  in  this,  though  .a 
Christian  country.  And,  on  the  other  hand,  I  am  clearly  of  opinion,  that 
such  infidels;,  if  any  such  there  be,  who -either  do.  not  believe  a  God,. or,  if 
thcydo,  do  not.  think  that  he.  will  either  rewai'd  or  puiiish  them  in-  this 
world  or  in  the;-. next,  'cannot  be  witnesses  in  any  case,  nor  •under  any  cir-f 
cumstajices,  for  this  plain  reason,,  because  an  oath  caniiot.  possibly  be  any 
tie  or  obligation  upon  them.  I  therefore  entirely  disagree  with  what  is 
reported  to  have  been,  said  by  Lord  Chief  Justice  Ley,  in  2;  Rol.  Rep.  346. 
Tr.  21  Jam.  1  B..  R.,  that  in  the  trials  of  matters  arising  beyond  sea  we  ought 
to  allow  such  proof  as  they  beyond  sea  would  allow..  This  would  be  leav- 
ing this  point  on  so  vof.y  loose  and  uncertain  a  foot,  that  I  cannot  come  into 
it ;  for  if  this  rule:  were  to  hold,  considering  in  what  a  strange  manner  jus- 
tice is  administered  in. son\e  foreign  parts,  God  knows  what  evidence  must 
be  admitted.  ?Jbr  can  I  agree  wilh  the  resolution  in  the  case  of  Alsop  v. 
Bowtrell,  Cro.  Jac.  .541,  2,  M.  17  J.  1,  B.  R.,  where  it  was  holden,  that  a 
certificate,  undar  ihe.scal  of  the  minister  at  Utrecht,  and  of  the  said  town,  of 


398  smith's   leading   cases. 

the  marriage  of  two  persons  there,  and  that  they  cohabited  together  as  man 
and  wife,  was  a  sufficient  proof.  To  admit  the  certificate  of  the  minister  of 
the  fact  of  the  marriage,  at  a  place  where  there  is  no  bishop,  might,  perhaps, 
be  equal,  and  be  resembled  to  the  certificate  of  the  bishop  here,  which  is  in 
some  cases  conclusive  evidence  of  a  marriage.  But  I  am  clearly  of  opinion 
that  the  certificate  of  their  cohabiting  tog:elher  ought  not  to  have  been  admit- 
ted. For  our  law  never  allows  a  certificate  of  a  mere  matter  of  fact,  not 
coupled  with  any  matter  of  law,  to  be  admitted  as  evidence.  Even  the  cer- 
tificate of  the  King,  under  his  sign  manual,  of  a  matter  of  fact,  (except  in  one 
old  case  in  Chancery,  Hob.  213,)  has  been  always  refused  ;  and  it  would  be 
strange  if  we  should  give  greater  credit  to  the  certificate  of  a  minister  at 
Utrecht  than  to  that  of  the  king  himself.  Besides,  it  is  not  the  best  evidence 
that  the  nature  of  the  thing  will  admit,  but  the  proper  and  usual  evidence  of 
_^g^_-|  a  fact,  arising  beyond  sea,  is  an  affidavit  or  deposition,  *taken  before 
L  -'a  public  notary,  and  certified  to  be  so,  under  the  seal  of  the  place, 
or  the  principal  ofiicer  of  the  place,  which  has  been  admitted  as  evidence  in 
some  cases,  where  it  would  be  too  expensive,  considering  the  nature  of  the 
cause,  to  take  out  a  special  commission.  Before  I  conclude  this  head,  I 
must  beg  leave  again  to  take  notice  of  what  is  said  by  Lord  Hale,  that  it 
must  be  left  to  the  jury  what  credit  must  be  given  to  these  infidel  witnesses. 
For  I  do  not  think  that  the  same  credit  ought  to  be  given  either  by  a  court 
or  a  jury  to  an  infidel  witness  as  to  a  Christian,  who  is  under  much  stronger 
obligations  to  swear  nothing  but  the  truth.  The  distinction  between  the 
competency  and  credit  of  a  witness  is  a  known  distinction,  and  many  wit- 
nesses are  admitted  as  competent,  to  whose  credit  objections  may  be  after- 
wards made.  The  rule  of  evidence  is,  that  the  best  evidence  must  be  given 
that  the  nature  of  the  thing  will  admit.  The  best  evidence  which  can  be 
expected  or  required,  according  to  the  nature  of  the  case,  must  be  received  : 
but  if  better  evidence  be  offered  on  the  other  side,  the  other  evidence,  though 
admitted,  may  happen  to  be  of  no  weight  at  all.  To  explain  what  I  mean  : 
suppose  an  examined  copy  of  a  record  (as  it  certainly  may)  be  given  in  evi- 
dence ;  if  the  other  side  afterwards  produce  the  record  itself,  and  it  appears 
to  be  different  from  the  copy,  the  aulhoritj'-  of  the  copy  is  at  an  end.  To 
come  nearer  to  the  present  case  :  supposing  an  infidel,  who  believes  a  God, 
and  that  he  will  reward  and  punish  him  in  this  world,  but  does  not  believe 
a  future  state,  be  examined  on  his  oath,  as  I  think  he  may,  and,  on  the  other 
side,  to  contradict  him,  a  Christian  is  examined,  who  believes  a  future  state, 
and  that  he  shall  be  punished  in  the  next  world  as  well  as  in  this  if  he  does 
not  swear  the  truth,  I  think  that  the  same  credit  ought  not  to  be  given  to  an 
infidel  as  to  a  Christian,  because  he  is  plainly  not  under  so  strong  an  obliga- 
tion. 

I  have  now  done  with  the  general  question.  And  what  I  have  said  upon 
that  must  plainly  show  of  what  opinion  I  am  in  respect  to  the  present  ques- 
tion ;  and,  therefore,  I  shall  be  very  short  as  to  that.  I  think,  after  what  I 
have  already  said,  I  need  say  nothing  more  to  determine  this  point,  than 
barely  to  state  the  facts  relating  to  it,  as  they  stand  now  before  the  court. 
r*9nrl  *It  is  admitted  that  the  cause  is  concerning  a  mercantile  affair 
L  -'  which  was  transacted  in  a  foreign  heathen  country,  at  Calcutta.  It 
must  be  agreed  that  it  is  greatly  to  the  advantage  of  this  nation  to  carry  on  a 
trade  and  commerce  in  foreign  countries,  and  in  many  countries  inhabited 


OMICHUND     V.     BARKER.  399 

by  heathens,  and  particularly  in  this  town,  in  which  we  have  established  a 
factory  tor  tliat  purpose.  A  trade  was  accordingly  carried  on  there  between 
the  plaintiir,  a  heathen  and  a  subject  of  that  country,  and  a  Christian   mer- 
chant, a  subject  of  England.     It  is  insisted  by  the  plaintiff,  that  the  English 
merchant,  being  greatly  in   his  debt,  withdrew  into  England,  and   conse- 
quently was  not  amenable  to  the  courts  of  justice  in  that  country,  where,  if 
he  could  have  tried  his  cause,  this  evidence,  which  is  now  in  dispute,  would 
have  certainly  been  admitted.    He  followed  his  debtor  into  England,  which 
was  the  only  remedy  that  he  had  left,  and  filed  his  bill  against  him  in  the 
Court  of  Chancery  here.     No  one  will,  I  believe,  now  say  that  he  had  not 
a  right  to  bring  such  a  suit,  or  that  he  is  not  entitled  to  justice.  For,  though 
there  was  such  an  old  notion  in  popish  times,  and  for  some  little  time  after- 
wards, till  the  Reformation  was  fully  established,  that  even  an  alien  friend, 
especially  if  he  were  an  infidel,  could  not  sue  in  a  court  of  justice  here,  this 
most   absurd,  wicked,  and  unchristian   notion   has,  God  be   thanked,  been 
long  since  exploded,  and  will,  I  hope,  never  be   revived  again.     It  being 
admitted  that  he  may  bring  his  suit  here,  and  consequently  that  he  is  enti- 
tled to  justice,  it  follows  that  he  must  be  at  liberty  to  produce  his  evidence 
here,  in  order  to  make  out   his  case.     And  if  he  produce  his  evidence,  it 
must  be  upon  oath;   for  it  would  be  absurd  to  give  an  infidel  more  credit 
than  a  Christian,  which  we  must  do,  if  an  infidel's  evidence  be  necessary, 
in  order  to  do  justice,  and  yet  he  cannot  be  examined  upon  oath  ;  he  must, 
therefore,  be  examined   upon  oath  in  some  shape  or  other.     In  order  to 
obtain  justice,  the  plaintiff  in  this  cause  laid  his  case  properly  before  the 
Court  of  Chancery,  and  prayed  a  commission  to  Calcutta^  and  the  Court  of 
Chancery,  I  think,  very  rightly,  and  with  great  justice,  ordered  a  commis- 
sion to  go,  and  that  the  words  "  on  the  Holy  Evangelists"  should  be  omitted, 
and  the  word  "solemnly"  inserted  in  their  room  ;  and  likewise  very  pru- 
dently *directed  that  the  commissioners   should  certify  upon    the  rjunn^i 
return  of  the  commission,  in  what  manner  the  oath  was  adminis-  L         J 
tered  to  the-  witnesses  examined  on   the  commission  ;  and  what  religion 
they  were  of.     The  commissioners  accordingly  returned  that  the. oath  was 
administered  to  the  witnesses  in  the  same  words  as  here  in  England,  which 
fully  answers  the  objection,  (if  there  was  any  thing  in  it,)  that  the  form  of 
the  oath  cannot  be  altered  ;  and  they  certified  that  after  the  oath  was  read, 
and  interpreted  to  them,  they  touched  the  bramin's  hand  or  foot,  the  same 
being  the  usual  and  most  solemn  manner  in  which  oaths  are  administered 
to  witnesses  who  profess  the  Gentoo  religion,  and  in  the  same  manner  in 
which  oaths  arc   usually  administered  to  persons  who  profess  the  Gentoo 
religion,  on  their  examination  as  witnesses  in  the  courts  of  justice,  erected 
by  virtue  of  his  Majesty's  letters-patent,  at  Calcutta  ;  and  they  further  cer- 
tified that  the  witnesses  so  examined  were  all  of  the  Gentoo  religion.     This 
certificate,  I  think,  fully  answers  the  objection,  that  it  does  not  appear  that 
the  witnesses   believe  a  God,  or  that  he  will  punish  them  if  they  swear 
falsely  ;  which,  as  I  have  already  said,  I  admit  to  be  requisite,  absolutely 
necessary  to  qualify  a  person  to  take  an  oath.    I  do  not  at  all  rely  upon  the 
books  which  were  cited,  and  which  gave  an  account  of  the  Gentoo  religion. 
But  it  is  plain  from  the  certificate  itself,  that  they  believe  and  worship  aGod, 
and  that  they  have  priests   for  that  purpose,  which  would  be  of  no  use,  if 
they  did  not  believe  that  he  would  reward  or  punish  them,  according  to 


th$if -;di^'ri^.f '-^l^fe  betfifeja'te  Krce^vfs'^-ahiwd's  tliia  ol3]ectfoft;?l!h?it'  the  oalli 
b^ing  only,  reaJ  ta-wiineeses,  it  lioes;  not  appear' that . they- saidor  did  tiny- 
thing  which  signified  theii\a?sein  to  "it ;  for  touching  t-}ie  haad_:or  foot,  of  the: 
;.pTiestj  after  iliese  words,  ^  so  help -me  God,"  it  beiug  thtjir  usual 'fomi,  is  as 
naoclv  sionifying'  tl>e;ir  assent  as  Ifissing  the  hook  is  "here,  where  the  p'arty 
swearing Kkewise  says  nolbiii^.  And  ihecasecitedhy  the  Lord  Chi^sf. Baro»,- 
ftqii) -2.  Sid.  6i-iMieh.  i65"7,.^kiaJy  proves  .tiiig-,  where'  Chief  Justice.  Glyn 
was  of  opinion -thai  .Doctor  Owen's  iiolding  lip  his  right  hand  was  sufficient, 
wuhoat  touching  the  book;    And  Lord  Stair  in  his  Institutes  ofthe  Lai^^'s  of 
Scotland,  p.  692,  ccmfinns  this,  where  h-e  -says'  .^'it  is  the  .dtityof  fudges, 
i"*2rifti' *'"   taking- the  oaths  of  wiines.ges  to  do 'it'-irt-.  those  forms  that-wifl 
L  .    -  -|  most  tou'cii/:th«  i^Guscie^lce•<jf.  the  ^Wearers,  according, to  their  per- 
suasion apd  custom  •;.  and  though  C^iiakers:  and  faioatics,  deyiatirig-  frora.tlie- 
corajraon  sentiments,  of  mankind,  re  fuse  to  give  a  formal  oath,^yet,  if  tliey.  dd. 
that  .which  is  materially  the  isam.e,- it  is  materially  an  oathi"- 
"  .VFhe  Only  objection  that  remains  against  admitfing  this  evidence  isj  that 
these  witnesses  will  not  be  liabte  to  be  indicted  for  perjury  ;-  because  they  - 
ar.e  .not.  sworn  supra  sacrosancta  Dei  Bvangtjlia,  which  ?words,.  a«  waiif 
itisisted,  are  'ne'cessary  in  every  siieh  indictraeatr;;  atwl  thefrfefdT6vihey-;^r9v 
not  under 4,he  saitje  obligations  to.,sWear  truly  as  Chfistiau'witnegses  Vcev--' 
But  this  objection   has  been'  in  a  great  measure  already  answered- by  .tb^; 
-Chief  Baron,  aiid  it  may  receive  two  plain  answers  ;  first,  thatfllestt  wdTdsj^' 
:>''&upra  sacrosancia  Dei  E.^-angelia,**  or '.' tactis  sacrosanctis  De  Evangel i is ,^'f 
.  are.,  not -neces^ry.tQ,  be  ill- an   indictment-  for  pevjory.     They  have  feepT" 
omitted  in  man'j' indictments  against  Jews, of  which  several precedehts  hav^K 
been;  laid  be-fore  li'fe;  and  they  aronotin  the  preecdentsof  suchindiGimentSi; . 
which  I  find  in  an  aneient  and  verj'  good  book,  erititlcd  West's  Simbol'eo^^- 
graph}^:   butit  is  only'gaid   there,  "supra   sacramentiini-suura  dixit  €i%,' 
deposuit,"  or  "aflirmavit  et  deposuit/'  -Bes^ides  :  thisargumeDtj  ifit  proyi^' 
.xmyjhing,  proves  a  great  deal  too  .much  •,  for,  if  there  were  any  thi+7g  in  It, 
.many,  depositions  even  of- Christians   have  been-  atfrnittedjaTi^' 'many  'SVor'^r- 
must  be  admitted,;or  else  there  will  be  a  manifest failure  bf  justice,  where 
the  witnesses  ar^  cextainly  not  liable  to.  be  indicted-,  "for,  when  the-  deposi- 
tions of  witnessesafe  taken  in  another  countrjv'it'freq'uenfiy  happen.^  tliaV. 
they  never  co.i:ne'overhithei-,  dr^  if  the_y  do,  cannot  be  indicted  for  perjury,', 
because  -the  iact  was  .'committed-  in-  another.-coutitry.  . 'iMiose,  there  fore,  wh;0  . 
are  plai'nly  not- Habie  to  be  indicted  for  perji3ty.hdve-'ofti?n' been,  and  for  th'e 
•sake-of  ju.s(ic5e -mtist  be,  ad'miudd  as  witnesses--,"  an'd-^a  there  is  an  end  of 
this  objectiom'; v.  .'-^ ■.'-..      .v     •    .    ..    ^  - -.v  -::'  "  - 

From  what -t have  said  it  is  plalii  ihat.-'my'-opinion  is  tkaVtfiese-^p'posi- 
tions  ought  to  be  read  in  evidence.  ^^  '  -    ,■' 


r  *209  1        *Tjie  rule  of  law  upon  this  the  proper  question  ta  put  to  a  witness, 

'■  -*    subject    was     anciently    sup-  in  order  to  ascertain  his  competency  as 

posed  to  be,  that  injideh,  i.  e.,  persons  to   religious   principle,    is   whether    he 

not  professing  the  Christian  faith,  were  bclievas  in  a  Gcd,  the  obligation  of  an 

iacompetent  as  witnesses,  Gilb.  Ev.  142.  oath,  and  a  future  state  of  rewards  and 

The  priucipal  case  has,  however  settled,  pumshmcnls.     It  would   appear,   how- 

the  contrary ;  and  it  was  ruled  hy  Bui-  ever,  froni  some  of  the  observations  o^ 

ler,  J.,  in  R.  v.  Taylor,  Peake,  11,  that  the  Chief  Justice  in  the  principal  case, 


OMICIIUND     V.     BARKER. 


401 


that  it  is  sufficient  if  the  witness  believe 
in  a  God  who  will  reward  or  punish  him 
in  this  world.  In  VVhite'a  ca^^e,  1 
Leach,  430,  the  witness  stated  tliat  he 
had  heard  tlicre  was  a  God,  and  believ- 
ed that  people  who  told  lies  would  come 
to  the  gallows,  but  was  ignorant  of  the 
obligation  of  an  oath,  a  future  state  of 
rewards  and  punisiniients,  tiie  existence 
of  another  world,  and  what  became  of 
wicked  people  after  death.  His  testi- 
mony was  rejected.  In  this  case  the 
witness  seems  to  have  an  idea  that 
falsehood  would  be  punished  by  God  in 
this  world,  but  not  of  the  peculiar 
solemnity  of  an  oath,  and  of  the  sinful- 
nf'ss  of  perjury  beyond  that  of  any  other 
species  of  falsehood.  It  has  been  held 
that  where  an  inlant  witness  in  a  crimi- 
nal case  appeared  to  have  no  notion  of 
the  obligation  of  an  oath,  the  trial  might 
be  postponed  till  he  should  be  instructed, 


1  Leach,  430,  n.  But  it  was  held  differ- 
ently where  the  witness  was  an  adult, 
and  of  sufficient  intellect.  Wade's  case, 
1  Moo.  C.  C.  86. 

Quakers  and  Moravians  were  former- 
ly incompetent  in  criminal  cases,  but 
their  disability  is  now  removed  by  St.  9 
G.  4,  c.  15,  s.  1.  Excommunicated 
persons  were  also  incapable  of  giving 
evidence  at  common  law,  but  are  now 
by  St.  53  G.  3,  cap.  127,  sect  3,  ex- 
empted from  all  civil  disabilities. 

With  respect  to  the  principal  case, 
the  following  account  of  the  determina- 
tion of  the  Chancellor  upon  it  is  extract- 
ed from  1  Wilson,  84.  "It  was  held 
by  the  Lord  Chancellor  that  an  intidel, 
pagan  idolater,  may  be  a  witness,  and 
that  his  deposition,  sworn  according  to 
the  custom  and  manner  of  the  country 
where  he  lives,  may  be  read  in  evi- 
dence." 


In  the  case  of  Jackson  v.  Gridley,  18  Johnson,  103,  the  competency  of  a 
witness  as  atlected  by  his  religious  creed,  was  made  to  rest  upon  the  ques- 
tion of  his  belief  in  the  existence  of  a  God,  and  a  state  of  reward  and  pun- 
ishment in  the  world  to  come  ;  thus  excluding  those  persons  who  confine 
the  operation  of  divine  justice,  within  the  limits  of  the  life  of  man  in  this 
world.  The  same  doctrine  was  held  by  the  Supreme  Court  of  Connecticut 
in  the  case  of  Curtis  v.  Strong,  4  Day,  51,  and  Atwood  v.  Weston,  7  Con- 
necticut, 66.  In  the  latter  case,  the  witness  was  excluded  on  the  ground 
that  as  he  believed  that  all  mankind  would  be  made  happy  immediately 
after  death,  no  sanction  could  be  added  to  his  oath  by  a  general  faith  in  a 
future  state  of  existence.  The  distinction  was  also  taken  in  argument,  and 
and  supported  by  the  authority  of  the  court,  that  as  the  important  point  was 
not  what  the  witness  thought  of  the  damnation  of  others,  but  of  his  own,  he 
would  equally  have  been  incompetent,  had  he  believed  himself  to  be  included 
among  the  number  of  the  elect  under  the  doctrine  of  predestination,  irre- 
spectively of  the  character  of  his  actions  while  still  in  this  state  of  existence. 

A  belief  in  C4od  and  in  a  future  state  of  existence  were  determined  to  be 
essential  to  the  competency  of  a  witness,  in  the  cases  of  Wakefield  v.  Ross, 
5  Mason,  16,  and  Noble  v.  The  People,  Breese,  29  ;  but  in  the  latter  deci- 
sion it  was  held,  that  if  these  points  were  embraced  in  the  creed  of  the 
party  presented  for  examination  under  oath,  the  nature  of  his  faith  on 
the  question  of  future  punishment  was  immaterial.  The  good  sense  of  this 
decision  will  be  understood  by  a  reference  to  the  theological  subtlety  of  the 
discussion  in  Atwood  v.  Weston.  But  the  courts  of  New  York  have 
departed  still  further  than  was  done  in  this  decision,  from  the  doctrine 
advanced  in  Jackson  v.  Gridley.  In  two  different  opinions, which  have  been 
subsequently  delivered,  by  the  circuit  court  of  that  state,  which  will  be  found 

Vol.  I.— 26 


402  smith's  leading  cases. 

reported  2  Cowen,  433.  573,  the  ground  was  taken  that  a  belief  in  God,  and 
in  punishment  by  him  for  crime,  whether  in  this  world  or  the  next,  was  suf- 
cient  to  render  a  witness  competent.  As  the  witness  who  was  excluded  by 
the  decision  in  Johnson's  Reports,  had  expressed  an  entire  disbelief  of  the 
existence  of  a  God,  or  of  an}^  interposition  whatever,  by  a  superior  power, 
for  the  purposes  of  reward  and  punishment,  it  is  evident  that  the  opinion  of 
the  court,  in  requiring  a  belief  in  a  future  state  of  rewards  and  punishments, 
went  beyond  the  point  which  the  facts  of  the  case  presented ;  and  may 
therefore,  to  a  certain  extent,  be  considered  as  an  obiter  dictum.  The  law 
in  New  York,  may  be  presumed  to  be  accordance  with  the  principles  ruled 
in  the  Nisi  Prius  opinion  quoted  above,  since  in  Butts  v.  Swartwood,  2 
Cowen,  432,  Sutherland,  J.,  in  delivering  the  opinion  of  the  court  said, 
that  the  true  test  of  the  competency  of  a  witness  was,  •'  whether  he  believed 
in  the  existence  of  a  God,  who  would  punish  him  if  he  swore  falsely;"  thus 
adopting  the  words  of  C  J.  Willis,  in  the  case  of  Omichund  v.  Barker,  as 
the  expression  of  the  law.  Although  this  general  opinion  was  expressed, 
the  question,  whether  a  belief  in  a  punishment  confined  to  this  life,  will  be 
sufficient,  was  not  raised  on  the  record,  nor  expressly  decided  by  the  court, 
who  merely  held,  that  a  witness  was  competent  where  it  did  not  appear, 
that  his  disbelief  extended  to  anything  more,  than  the  eternal  duration  of 
future  punishments. 

In  Cubbison  v.  M'Creary,  2  W.  &  S.  262,  the  Supreme  Court  settled 
the  law  on  this  point  in  Pennsylvania,  by  deciding  that  a  belief  in  a  future 
state  of  rewards  and  punishments,  was  not  necessary  to  the  competency  of 
a  witness.  It  was  again  said,  that  the  true  test  of  his  competency  was,  the 
existence  of  a  belief  in  a  God,  who  will  punish  him  if  he  swear  falsely. 
Such  would  also  seem  to  be  the  law  in  Massachusetts,  since  in  Hunscom  v, 
Hunscom,  15  Mass.  184,  the  court  held,  that  evidence  of  the  disbelief  of  a 
witness  in  a  future  state,  went  only  to  his  credibility,  not  his  competency. 
It  is  presumed,  however,  that  all  the  courts  of  the  United  States,  would 
acknowledge  as  law,  the  judgment  of  the  Supreme  Court  of  New  Hamp- 
shire, Norton  v.  Ladd,  4  N.  H.  R.  444,  who  there  decided,  that  a  disbelief 
in  the  existence  of  a  God,  rendered  a  witness  incompetent.  To  the  same 
effect,  is  the  case  of  Arnold  v.  Arnold,  13  Vt.  Rep.  362,  confirmed  by  Scott 
V.  Hooper,  14  id.  535,  where  it  was  held,  that  a  witness  who  did  not  believe 
in  the  existence  of  a  Divine  being,  could  not  be  held  as  competent,  so  long 
as  the  sanction  of  an  oath,  or  of  some  form  equivalent  to  an  oath,  was  thought 
necessary  to  the  validity  of  evidence.  "If  the  witness,"  said  the  court,  "  in 
this  case,  does  not  believe  in  any  Supreme  Governor  of  the  universe,  who 
will  reward  virtue,  and  punish  vice,  there  is  no  mode  known  to  us,  by 
which  an  oath  can  be  made  binding  upon  his  conscience.  If  a  man  sin- 
cerely believe  himself  to  belong  to  the  highest  order  of  intelligences,  it  may 
be  his  misfortune,  and  not  his  fault  ;  but  he  cannot  be  sworn  by  the  greater., 
and  if  sworn  at  all,  he  must  be  allowed  to  swear  by  himself."  It  was 
farther  said,  that  if  the  witness  believed  in  God,  it  was  not  necessary  that 
he  should  believe  in  a  future  state  of  existence,  or  in  punishment  in  a 
future  life. 

In  Jackson  v.  Gridley,  already  cited,  it  was  held,  that  when  evidence 
was  given  to  prove,  by  relating  expressions  of  the  witness,  a  past  disbelief 
in  religious  truth,  sufficient  to  affect  his  competency,  the  witness  could  not 


OMICHUND     V.     BARKER.  403 

be  allowed  by  bis  change  of  mind,  and  using  expressions  equally  strong  of 
present  belief,  to  render  himself  competent.  The  same  doctrine  was  also 
applied  in  Connecticut,  in  the  case  of  Curtis  v.  Strong,  4  Day,  51  ;  and  in 
Scott  V.  Hooper,  the  opinion  of  the  court  appears  to  have  been,  that  the 
witness  himself  is  not  to  be  interrogated  as  to  his  religious  belief.  It  was 
said  in  these  cases,  that  as  the  question  was,  as  to  the  obligation  of  an  oath 
on  the  conscience  of  the  witness,  he  of  course  could  not  be  permitted  to 
testify  under  oath,  as  to  his  present  belief,  and  that  his  declarations  inde- 
pendently of  an  oath,  would  not  disprove  the  fticts  sworn  to  on  the  other 
side,  and  could  not  be  received  as  evidence  at  all.  It  is  perfectly  evident, 
that  the  declarations  or  assertions  of  a  party,  who  has  not  been  sworn,  caa 
never  be  received  as  evidence  of  other  facts  ;  but  when  they  are  themselves 
the  material  facts  in  question,  there  can  be  no  doubt,  that  the  jury,  or  judge, 
may  act  on  them,  as  well  as  upon  any  other  facts  submitted  to  their  inspec- 
tion, or  the  evidence  of  their  senses.  It  is  in  this  way  that  the  evidence 
afforded  by  deeds,  is  taken  advantage  of,  and,  in  all  cases  where  the  actual 
fact  can  brought  before  a  court,  it  must  evidently  give  better  grounds  for 
their  decision,  than  can  any  report  of  it  by  others.  Now,  in  the  present 
case,  it  may  be  questioned,  whether  there  be  in  law  or  fact  any  better 
method  of  ascertaining  either  the  intentions  or  belief  of  men,  than  their  words, 
and  indeed,  whether  in  point  of  eflect,  the  law  does  not  regard  the  words 
and  belief,  as  in  some  degree  identical,  one  with  another.  If  this  be  so,  it  is 
evident,  that  the  judge  should,  when  the  only  question  is  as  to  the  mental 
condition  of  a  witness,  listen  to  his  expressions  at  the  time,  as  the  best  indi- 
cation of  what  that  state  is.  If  however  it  be  urged,  that  these  expressions 
as  heard  at  the  time  of  the  trial,  do  not  indicate  the  belief  of  the  witness, 
how  can  it  be  said  that  they  ever  indicated  it,  and  if  not,  on  what  principle 
are  they  allowed  to  be  proved  by  the  testimony  of  others  ?  It  would  appear  to 
be  perfectly  settled  law,  that  whatever  is  not  competent  evidence  in  itself  if 
presented  in  court,  cannot  be  made  so  by  being  brought  there  through  other 
and  indirect  channels.  The  whole  question  therefore,  is  reduced  to  one  of 
two  things:  either  the  expressions  of  a  party  are  not  original  facts,  repre- 
senting his  intentions  or  belief,  and  in  that  case,  proof  of  them  should  not  be 
received  through  the  testimony  of  others,  or  they  do  belong  to  that  class  of 
facts,  and  if  so,  they  may  be  directly  presented  to  the  court,  as  the  best  and 
most  original  evidence,  of  which  the  nature  of  the  case  admits.  If  credit 
cannot  be  given  to  the  declarations  of  the  witness  when  affirming  his  belief, 
why  should  they  be  trusted  when  they  deny  it?  Evidently,  if  he  cannot 
by  his  assertions,  prove  himself  a  believer,  he  must  have  been  equally 
unable  to  establish,  by  the  sanae  method,  that  he  is  an  atheist.  No  sub- 
stantial reason  can  be  given,  why  he  should  be  believed  at  one  time,  rather 
than  another,  except  that  his  former  statement  may  have  been  ante  litem 
motam.  This  however,  can  have  no  disqualifying  effect  at  law,  itnless  his 
interest  in  the  suit  were  such  as  the  law  recognises,  and  then  he  would  be 
incompetent  on  other  grounds.  But  even  if  the  different  circumstances, 
under  which  the  present  and  past  declarations  are  made,  should  be  thought 
to  have  an  effect,  it  can  only  be  as  to  their  credibility,  not  their  compe- 
tency. Both  are  equally  before  the  court,  although  those  made  at  the 
time  would  seem  more  directly  so,  and  it  is  evident  that  as  the  determina- 
tion of  the  fact  is  in  the  breast  of  the  judge,  he  should  decide  upon  a  coa- 
sideration  of  both. 


404  smith's   leading  cases. 

Although  the  Supreme  Court  of  Pennsylvania  have  not  directly  deter- 
mined the  point  in  question,  they  v\-ouid  seem  in  the  cases  of  Gluinn  v. 
Crowell,  4  Wharton,  334,  and  in  that  of  Cubbison  v.  M-Creary,  already 
cited,  to  have  inclined  to  the  opinion,  that  the  declarations  of  a  witness  may 
be  received,  to  establish  the  nature  of  his  religious  belief,  whenever  his 
competency  is  on  that  ground  objected  to, 

H. 


[*210]  *SCOTT  r.  SHEPHERD. 


EASTER— 13  GEORGE  3,  C.  P. 
[reported    2    BLACKSTONE,    892.3 

Trespass  and  assault  will  lie  for  originally  throwing  a  squib,  which,  after  having 
been  thrown  about  in  self-defence  by  other  persons,  at  last  put  out  the  plaintiff's 
eye. 

Trespass  and  assault  for  throwing,  casting,  and  tossing  a  lighted  squib 
at  and  against  the  plaintiff",  and  striking  him  therewith  on  the  face,  and  so 
burning  one  of  his  eyes,  that  he  lost  the  sight  of  it,  whereby,  &c.  On  not 
guilty  pleaded,  the  cause  came  on  to  be  tried  before  Nares,  J.,  last  summer 
assizes  at  Bridgwater,  when  the  jury  found  a  verdict  for  the  plaintiff  with 
100/.  damages,  subject  to  the  opinion  of  the  court  on  this  case  : — On  the 
evening  of  the  fair-day  at  Milborne  Port,  28lh  October,  1770,  the  defendant 
threw  a  lighted  squib,  made  of  gunpowder,  &c.,  from  the  street  into  the 
market-house,  which  is  a  covered  building  supported  by  arches,  and 
enclosed  at  one  end,  but  open  at  the  other  and  both  the  sides,  where  a  large 
concourse  of  people  were  assembled ;  which  lighted  squib  so  thrown  by  the 
defendant,  fell  upon  the  standing  of  one  Yates,  who  sold  gingerbread,  &c. 
That  one  Willis  instantly,  and  to  prevent  injury  to  himself  and  the  said 
wares  of  the  said  Yates,  took  up  the  said  lighted  squib  from  off  the  said 
standing,  and  then  threw  it  across  the  said  market-house,  when  it  fell  upon 
another  standing  there  of  one  Ryal,  who  sold  the  same  sort  of  wares,  who 
instantly,  and  to  save  bis  own  goods  from  being  injured,  took  up  the  said 
lighted  squib  from  off  the  said  standing,  and  then  threw  it  to  another  part 
of  the  said  market-house,  and  in  so  throwing  it  struck  the  plainliff,  then  in 
the  said  market-house,  in  the  face  therewith,  and  the  combustible  matter 

C,    ,,-,  then  *burstinjT,  put  out  one  of  the  plaintiff's  eyes.     Q,u.  If  this 
21 1  I  .       . 

-'  action  be  maintainable  ? 

This  case  was  argued  last  Terra  by  Glyn,  for  the  plaintiff",  and  Burland, 
for  the  defendant:  and  this  term,  the  court,  being  divided  in  their  judg- 
ment, delivered  their  opinions  seriatim. 


SCOTT     V.     SHEPHERD.  405 

Nares,  J.,  was  of  opinion  that  trespass  would  lie  in  the  present  case. 
That  the  natural  and  probable  consequence  of  the  act  done  by  the  defend- 
ant was  injury  to  somebody,  and  therefore  the  act  was  illegal  at  common 
law.     And  the  throwing  of  squibs  has,  by  statute  W.  3,  been  since  made  a 
nuisance.     Being  there'fore  unlawful,  the  defendant  was  liable  to  answer 
for  the  consequences,  be  the  injury  mediate  or  immediate  :   21  Hen.  7,  28, 
is  express  that  malus  animus  is  not  necessary  to  constitute  a  trespass.     So, 
too,  1  Stra.  59G.    Hob.  134.   T.  Jones,  205.    6  Edw.  4,  7,  8.   Fitzh.  Tres- 
pass, 110.     The  principle  I  go  upon  is  Avhat  is  laid  down  in  Reynolds  v. 
Clarke,  Stra.  634,  that  if  the  act  in  the  first  instance  be  unlawful,  trespass 
will  lie.     Wherever  therefore  an  act  is  unlawful  at  first,  trespass  will  lie  for 
the  consequences  of  it.     So,  in  12  Hen.  4,  trespass  lay  for  stopping  a  sewer 
with  earth,  so  as  to  overflow  the  plaintiff's  land.     In  26  Hen.  8,  8,  for 
going  upon  the  plaintiff's  land  to  take  the  boughs  off  which   had  fallen 
there''on  in  lopping.     See  also  Hardr.  GO.     Reg.  108,  9.5.     6  Edw.  4,  7,  8. 
1  Ld.  Raym.  272.     Hob.  180.     Cro.  Jac.  122,  43.     F.  N.  B.  202,  [91  c] 
I  do  not  think  it  necessary,  to  maintain   trespass,  that  the  defendant  should 
personally  touch  the  plaintiff;  if  he  does  it  by  a  mean,  it  is  sufficient,    aui 
facit  per  aliud  facit  per  se.     He  is  the  person  who,  in  the  present  case, 
gave   the   mischievous    faculty   to   the  squib.     That    mischievous   faculty- 
remained  in  it  till  the  explosion.     No  new  power  of  doing  mischief  was 
communicated  to  it  by  Willis  or  Ryal.     It  is  like  the  case  of  a  mad  ox 
turned  loose  in  a  crowd.     The  person  who  turns  him  loose  is  answerable 
in  trespass   for  whatever  mischief  he   may  do.     The  intermediate  acts   of 
Willis  and  Ryal  will  not  purge  the  original  tort  in  the  defendant.     But  he 
who  does  the  first  wrong  is  answerable  for  all  the  consequential  damages. 
So  held  in  the  King  v.  Huggins,  2  Lord  Raym.  1574.     Parkhurst  v.  Foster, 
1   Lord    Raym.    480.     Rosewell    v.    Prior,    12    Mod.    639.     And   it   was 
declared  by'this  court,  in  Slater  v.  Baker,  *M.  8  Geo.  3,  2  Wils.  |-S212l 
359,   they  would  not  look  with  eagle's  eyes  to  see  whether  the  L         J 
evidence    applies   exactly   or    not    to   the   case :    but    if  the    plaintiff  has 
obtained  a  verdict  for  such  damages  as  he  deserves,  they  will  establish  it 
if  possible. 

Blackstone,  J.,  was  of  opinion  that  an  action  of  trespass  did  not  lie  for 
Scott  against  Shepherd,  upon  this  case.  He  took  the  settled  distinction  to 
be,  that  where  the  injury  is  immediate,  an  action  of  trespass  will  lie  ;  where 
it  is  only  consequential,  it  must  be  an  action  on  the  case;  Reynolds  v. 
Clarke,  Lord  Raym.  1401,  Stra.  634;  Haward  v.  Bankes,  Burr.  1114; 
Harker  v.  Birkbeck,  Burr.  1559.  The  lawfulness  or  unlawfulness  of  the 
original  act  is  not  the  critereon  ;  though  something  of  that  sort  is  put  into 
Lord  Raymond's  mouth  in  Stra.  635,  where  it  can  only  mean,  that  if  the 
act  then  in  question,  of  erecting  a  spout,  had  been  in  itself  unlawful,  tres- 
pass might  have  lain  ;  but  as  it  was  a  lawful  act  (upon  the  defendant's  own 
ground,)  and  the  injury  to  the  plaintiff  only  consequential,  it  must  be  an 
action  on  the  case.  But  this  cannot  be  the  general  rule  ;  for  it  is  held  by 
the  court  in  the  same  case,  that  if  I  throw  a  log  of  timber  into  the  highway 
(which  is  an  unlawful  act),  and  another  man  tumbles  over,  and  is  hurt,  an 
action  on  the  case  only  lies,  it  being  a  consequential  damage :  but  if  in 
throwing  it  I  hit  another  man,  he  may  bring  trespass,  because  it  is  an  imme- 


406  smith's  leading   cases. 

diate  wrong'.  Trespass  may  sometimes  lie  for  the  consequences  of  a  law- 
ful act.  If  in  lopping  my  own  trees  a  bough  accidentally  falls  on  my 
neighbour's  ground,  and  I  go  thereon  to  fetch  it,  trespass  lies.  This  is  the 
case  cited  from  6  Edw.  4,  7.  But  then  the  entry  is  of  itself  an  immediate 
wrong.  And  case  will  sometimes  lie  for  the  consequence  of  an  unlawful 
act.  If  by  false  imprisonment  I  have  a  special  damage,  as  if  I  forfeit  my 
recognizance  thereby,  I  shall  have  an  action  on  the  case  ;  per  Powel,  J.,  11 
Mod.  180.  Yet  here  the  original  act  was  unlawful,  and  in  the  nature  of 
trespass.  So  that  lawjiil  or  imlmcful'is  quite  out  of  the  case  ;  the  solid  dis- 
tinction is  between  direct  or  immediate  injuries  on  the  one  hand,  and  mediate 
or  consequential  on  the  other.  And  trespass  never  lay  for  the  latter.  If 
this  be  so,  the  only  question  will  be  whether  the  injury  which  the  plaintiff 
suffered  was  immediate  or  consequential  only ;  and  I  hold  it  to  be  the  lat- 
^  ter.     The  *original  act  was,  as  against  Yates,  a  trespass;  not  as 

L  -I  against  Ryal  or  Scott.  The  tortious  act  was  complete  when  the 
squib  lay  at  rest  upon  Yates's  stall.  He,  or  any  bystander,  had,  I  allow,  a 
right  to  protect  themselves  by  removing  the  squib,  but  should  have  taken 
care  to  do  it  in  such  a  manner  as  not  to  endamage  others.  But  Shepherd,  I 
think,  is  not  answerable  in  an  action  of  trespass  and  assault  for  the  mischief 
done  by  the  squib  in  the  new  motion  impressed  upon  it,  and  the  new  direc- 
tion given  it,  by  either  Willis  or  Ryal;  who -both  were  free  agents,  and 
acted  upon  their  own  judgment.  This  differs  it  from  the  cases  put  of  turn- 
ing loose  a  wild  beast  or  a  madman.  They  are  only  instruments  in  the  hand 
of  the  first  agent.  Nor  is  it  like  diverting  the  course  of  an  enraged  ox,  or  of 
a  stone  thrown,  or  an  arrow  glancing  against  a  tree  ;  because  there  the  orig- 
inal motion,  the  vis  impressa,  is  continued,  though  diverted.  Here  the 
instrument  of  mischief  was  at  rest,  till  a  new  impetus  and  a  new  direction 
are  given  it,  not  once  only,  but  by  two  successive  rational  agents.  But  it 
is  said  that  the  act  is  not  complete,  nor  the  squib  at  rest,  till  after  it  is  spent 
or  exploded.  It  certainly  has  a  power  of  doing  fresh  mischief,  and  so  has  a 
stone  that  has  been  thrown  against  my  windows,  and  now  lies  still.  Yet  if 
any  person  gives  that  stone  a  new  motion,  and  does  further  mischief  with  it, 
trespass  will  not  lie  for  that  against  the  original  thrower.  No  doubt  but 
Yates  may  maintain  trespass  against  Shepherd.  And,  according  to  the  doc- 
trine contended  for,  so  may  Ryal  and  Scott.  Three  actions  for  one  single 
act !  nay,  it  may  be  extended  in  infinitum.  If  a  man  tosses  a  football  into 
the  street,  and,  after  being  kicked  about  by  one  hundred  people,  it  at  last 
breaks  a  tradesman's  windows,  shall  he  have  trespass  against  the  man  who 
first  produced  it  ?  Surely  only  against  the  man  who  gave  it  that  mischievous 
direction.  But  it  is  said,  if  Scott  has  no  action  against  Shepherd,  against 
whom  must  he  seek  his  remedy  ?  I  give  no  opinion  whether  case  would 
lie  against  Shepherd  for  the  consequential  damage  ;  though,  as  at  present 
advised,  I  think,  upon  the  circumstances,  it  would.  But  I  think,  in  strictness 
of  law,  trespass  would  lie  against  Ryal,  the  immediate  actor  in  this  unhappy 
business.  Both  he  and  Willis  have  exceeded  the  bounds  of  self-defence, 
and  not  used  sufficient  circumspection  in  removing  the  danger  from  them- 

C.,  selves.  The  throwino;  *it  across  the  market-house,  instead  of  brush- 
J  ing  it  down,  or  throwing  [it]  out  of  the  open  sides  into  the  street  (if 
it  was  not  meant  to  continue  the  sport,  as  it  is  called,)  was  at  least  an  unne- 
cessary and  incautious  act.     Not  even  menaces  from  others  are  sufficient  to 


SCOTT     V.     SHEPHERD.  407 

justify  a  trespass  against  a  third  person ;  much  less  a  fear  of  danger  to  either 
his  goods  or  his  person ; — nothing  but  inevitabb  necessity  ;  Weaver  v. 
Ward,  Hob.  134.  Dickenson  v.  Watson,  T.  Jones,  205  ;  Gilbert  v.  Stone, 
Al.  35,  Styl.  72.  So  in  the  case  put  by  Brian,  J.,  and  assented  to  by  Little- 
ton and  Cheke,  C.  J.,  and  relied  on  in  Rayni.  467,  "  If  a  man  assaults  me, 
so  that  I  cannot  avoid  him,  and  I  lift  up  my  staff" to  defend  myself,  and,  in 
lifting  it  up,  undesignedly  hit  another  who  is  behind  me,  an  action  lies  by 
that  person  against  me  ;  and  yet  I  did  a  lawful  act  in  endeavouring  to  defend 
myself."  But  none  of  these  great  lawyers  ever  thought  that  trespass  would 
lie,  by  the  person  struck,  against  him  who  first  assaulted  the  striker.  The 
cases  cited  from  the  Register  and  Plardres  are  all  of  immediate  acts,  or  the 
direct  and  inevitable  effects  of  the  defendants'  -immediate  acts.  And  I  admit 
that  the  defendant  is  answerable  in  trespass  for  all  the  direct  and  inevitable 
efl^ects  caused  by  his  own  immediate  act. — But  what  is  his  own  immediate 
act?  The  throwing  the  squib  to  Yates's  stall.  Had  Yates's  goods  been  burnt, 
or  his  person  injured,  Shepherd  must  have  been  responsible  in  trespass. 
But  he  is  not  responsible  for  the  acts  of  other  men.  The  subsequent  throw- 
ing across  the  market-house  by  Willis  is  neither  the  act  of  Shepherd,  nor  the 
inevitable  efl^ect  of  it  ;  much  less  the  subsequent  throwing  by  Ryal.  Slater 
V.  Barker  was  first  a  motion  for  a  new  trial  after  verdict.  In  our  case  the 
verdict  is  suspended  till  the  -determination  of  the  court.  And  though  after 
verdict,  the  court  will  not  look  with  eagle's  eyes  to  spy  out  a  variance,  yet 
when  a  question  is  put  by  the  jury  upon  such  a  variance,  and  it  is  made  the 
very  point  of  the  cause,  the  court  will  not  wink  against  the  light,  and  say 
that  evidence,  which  at  most  is  only  applicable  to  an  action  on  the  case,  will 
maintain  an  action  of  trespass.  2.  It  was  an  action  on  the  case  that  was 
brought,  and  the  court  held  the  special  case  laid  to  be  fully  proved.  So  that 
the  present  question  could  not  arise  upon  that  action.  3.  The  same  evidence 
that  will  maintain  trespass,  may  also  *frequently  maintain  case,  but  ^-._-, 
not  e  converso.  Every  action  of  trespass  with  a  "  per  quod,"  in-  L  -I 
eludes  an  action  on  the  case.{a\  I  may  bring  trespass  for  the  immediate 
injnry,  and  subjoin  a  "  per  quod" ybr  the  consequential  dainages  ; — or  may 
bring  case  for  the  consequential  damages,  and  pass  over  the  immediate 
injury,  as  in  the  case  from  li  Mod.  180,  before  cited.  But  if  I  bring  tres- 
pass for  an  immediate  injury,  and  prove  at  most  only  a  consequential 
damage,  judgment  must  be  for  the  defendant  ;  Gates  and  Bailey,  Tr.  6  Geo. 
3,2  Wils.  313.  It  is  said  by  Lord  Raymond,  and  very  justly,  in  Reynolds 
and  Clarke,  "  we  must  keep  up  the  boundaries  of  actions,  otherwise  we  shall 
introduce  the  utmost  confusion."  As  I  therefore  think  no  immediate  injury 
passed  from  the  defendant  to  the  plaintiff' (and  without  such  immediate  injury 
no  action  of  trespass  can  be  maintained,)  I  am  of  opinion  that  in  this  action 
judgment  ought  to  be  for  the  defendant. 

Gould,  J.,  was  of  the  same  opinion  with  Nares,  J.,  that  this  action  was 
well  maintainable.  The  whole  difficulty  lies  in  the  form  of  the  action  and 
not  in  the  substance  of  the  remedy.  The  line  is  very  nice  between  case 
and  trespass  upon  these  occasions  :  I  am  persuaded  that  there  are  many 
instances  wherein  both  or  either  will  lie.  1  agree  with  brother  Nares, 
that  wherever  a  man  does  an  unlawful  act,  he  is  answerable  for  all  the  con- 

(a)  Wells  V.  Ody,  5  Dovvl.  95. 


408  smith's  leading   cases. 

sequences ;  and  trespass  will  lie  against  him  if  the  consequence  be  in  the 
nature  of  trespass.  But,  exclusive  of  this,  I  think  the  defendant  maybe 
considered  in  the  same  view  as  if  he  himself  had  personally  ihrown  the 
squib  in  the  plaintiff's  face.  The  terror  impressed  upon  Willis  and  Ryal 
excited  self-defence,  and  deprived  them  of  the  power  of  recollection.  What 
they  did  was  therefore  the  inevitable  consequence  of  the  defendant's  unlaw- 
ful act.  Had  the  squib  been  thrown  into  a  coach  full  of  company,  the 
person  throwing  it  out  again  would  not  have  been  answerable  for  the  conse- 
quences. What  Willis  and  Ryal  did  was  by  necessity,  and  the  defendant 
imposed  that  necessity  upon  them.  As  to  the  case  of  the  football,  I  think 
that  if  all  the  people  assembled  act  in  concert,  they  are  all  trespassers  ;  1. 
from  the  general  mischievous  intent ;  2.  from  the  obvious  and  natural  con- 
sequences of  such  an  act :  which  reasoning  will  equally  apply  to  the  case 
before  us.  And  that  actions  of  trespass  will  lie  for  the  mischievous  conse- 
r*9ifil  ^"^^"c^s  of  another's  act,  whether  *lawful  or  unlawful,  appears  from 
L  -'  their  being  maintained  for  acts  done  in  the  plaintiff's  own  land  : 
Hardr.  60  ;  Courtney  and  Collelt,  1  Lord  Raym.  273.  I  shall  not  go 
over  again  the  ground  which  brother  Nares  has  relied  on  and  explained, 
but  concur  in  his  opinion,  that  this  actron  is  supported  by  the  evidence. 

De  Gray,C  J. — This  case  is  one  of  those  wherein  the  line  drawn  by 
the  law  between  actions  on  the  case  and  actions  of  trespass  is  very  nice  and 
delicate.  Trespass  is  an  injury  accompanied  with  force,  for  which  an 
action  of  trespass  vi  et  armis  lies  against  the  person  from  whom  it  is 
received.  The  question  here  is,  whether  the  injury  received  by  the  plain- 
tiff arises  from  the  force  of  the  original  act  of  the  defendant,  or  from  a  new 
force  by  a  third  person.  I  agree  with  my  brother  Blackstone  as  to  the 
principles  he  has  laid  down,  but  not  in  his  application  of  those  principles 
to  the  present  case.  The  real  question  certainly  does  not  turn  upon  the 
lawfulness  or  unlawfulness  of  the  original  act  ;  for  actions  of  trespass  will 
lie  for  legal  acts,  when  they  become  trespasses  by  accident ;  as  in  the  case 
cited  of  cutting  thorns,  lopping  of  a  tree,  shooting  at  a  mark,  defending 
oneself  by  a  stick  which  strikes  another  behind,  &c. — They  may  also  not 
lie  for  the  consequences  even  of  illegal  acts,  as  that  of  casting  a  log  in  the 
highway,  &c.  But  the  true  question  is,  whether  the  injury  is  the  direct 
and  immediate  act  of  the  defendant;  and  I  am  of  opinion  that  in  this  case 
it  is.  The  throwing  the  squib  was  an  act  unlawful,  and  tending  to  affright 
the  by-stander.  So  far  mischief  was  originally  intended  ;  not  any  particu- 
lar mischief,  but  mischief  indiscriminate  and  wanton.  Whatever  mischief 
therefore  follows,  he  is  the  author  of  it ; — Egreditur  personam,  as  the  phrase 
is  in  criminal  cases.  And  though  criminal  cases  are  no  rule  for  civil  ones, 
yet  in  trespass  I  think  there  is  an  analogy.  Every  one  who  does  an 
unlawful  act  is  considered  as  the  doer  of  all  that  follows  ;  if  done  with  a 
deliberate  intent,  the  consequence  may  amount  to  murder;  if  incau- 
tiously, to  manslaughter;  Fost.  261.  So  too,  in  1  Ventr.  295,  a  person 
breaking  a  horse  in  Lincoln's  Inn  Fields  hurt  a  man  ;  held,  that  trespass 
lay  ;  and,  2  Lev.  172,  that  it  need  not  be  laid  scienter.  I  look  upon  all 
that  was  done  subsequent  to  the  original  throwing  as  a  continuation  of  the 
r*oi«rl  ^^^^  force  and  first  act,  *which  \\'\\\  continue  till  the  squib  was  spent 
L  by  bursting.     And  I  think  that  any  innocent  person  removing  the 

danger  from  himself  to  another  is  justifiable  ;  the  blame  lights  upon   the 


SCOTT     V.     SHEPHERD. 


409 


first  thrower.  The  new  direction  and  new  force  flow  out  of  the  first  force, 
and  are  not  a  new  trespass.  The  writ  in  the  Register,  95,  a,  for  trespass 
in  maliciously  cutting-  down  a  head  of  water,  which  thereupon  flowed  down 
to  and  overwhelmed  another's  pond,  shows  that  the  immediate  act  need  not  be 
instantaneous,  but  that  a  chain  of  effects  connected  together  will  be  suflicient. 
It  has  been  urged  that  the  intervention  of  a  free  agent  will  make  a  diflijr- 
ence  :  but  I  do  not  consider  Willis  and  Ryal  as  free  agents  in  the  present 
case,  but  acting  under  a  compulsive  necessity  for  their  own  safety  and  self- 
preservation.  On  these  reasons  I  concur  with  brothers  Gould  and  Nares, 
that  the  present  action  is  maintainable. 

Postea  to  the  plaintiff. 


It  is  perfectly  clear,  that  if  an  injury 
be  done  to  A.  by  the  immediate  force  of 
B.,  the  former  may  bring-  trespass;  and 
it  is  equally  clear  that  if  the  injury  be 
not  immediate,  but  merely  consequen- 
tial, he  cannot  sue  in  trespass;  and  that 
his  remedy,  if  any,  is  by  action  on  the 
case  for  consequential  damages ;  these 
two  propositions  are  well  illustrated  by 
the  case  put  in  the  text,  of  a  man  throw- 
ing a  log  in  the  highway.  If  the  log 
strike  A.  in  its  fall,  he  may  sue  in  tres- 
pass;  but  if,  after  it  is  lodged,  and  rests 
upon  the  ground,  he  stumbles  over  it, 
and  so  receive  an  injury,  case  is  his 
only  remedy.  See  Com.  Di.  Pleader, 
Action  on  the  case,  A.  ibid.  B.  (6) ; 
Leame  v.  Bray,  3  East,  .59:5 ;  Covell  v. 
Laming,  1  Camp.  697 ;  Chandler  v. 
Broughton,  1  Cr.  &  Mee.  29;  3  Tyrwh. 
220.  [See  M'Laughlin  v.  Pryor,  4  M. 
&  Gr.  48.  56.] 

However,  although  trespass  lies  wher- 
ever the  injury  done  to  the  plaintiff 
results  from  tlie  immediate  force  of  the 
defendant,  still  there  are  many  instances 
in  wliicb  the  plain  till',  though  he  may 
adopt  that  form  of  action,  is  not  bound 
to  do  so,  but  may  sue  in  case.  In  More- 
ton  v.  Hardern,  4  B.  &.  C.  224,  the  de- 
claration stated  that  the  defendants 
drove  their  coach  so  negligently  and 
carelessly  that  the  wheel  ran  with  great 
force  against  the  plaintiff,  whereby  one 
of  his  legs  was  broken.  It  was  proved 
that  one  of  the  defendants  was  person- 
ally driving  when  the  accident  occurred  ; 
and  it  was  thereupon  urged  that  the 
action  should  have  been  trespass  not 
case.  The  court,  however,  decided,  that 
case  would  lie,  and  Bayley,  J.,  gave  the 
following  historical  account  of  the  pro- 


gress of  the  law  upon  this  subject.  "It 
was  long,"  said  his  lordship,  "  vexata 
questio,  whether  case  could  be  brought 
when  the  defendant  was  personally  pre- 
sent, and  acting  in  ihat  which  occasion- 
ed the  mischief.  Early  in  my  profes- 
sional experience,  case  was  the  form  of 
action  usually  adopted  for  such  injuries. 
In  Lord  Kenyon's  time  a  doubt  was 
raised  upon  the  point,  and  he  thought 
that,  where  the  act  was  immediately 
injurious,  trespass  was  the  only  action 
that  could  be  maintained  for  that  injury. 
Leame  v.  Bray  was  an  action  of  tres- 
pass. On  the  trial.  Lord  Ellenborough 
thought  it  should  have  been  case,  but 
on  further  consideration  this  court  was 
of  opinion  that  trespass  was  maintain- 
able, but  tliey  did  not  decide  that  an  ac- 
tion on  the  case  would  have  been  im- 
proper. Looking  at  the  other  cases  on 
the  subject,  it  is  difbcult  to  say  that  an 
action  on  the  case  will  not  lie  for  an  in- 
jury sustained  by  the  negligent  r;f:2iQ-i 
*driving  of  a  coach,  though  ■-  ■' 
one  of  the  proprietors  was  the  per- 
son guilty  of  that  negligence.  In  Ogle 
V.  Barnes,  8  T.  R.  188,  which  was  an 
action  for  negligently  steering  a  ship, 
the  declaration  alleged  that  the  ship 
was  under  tije  care  of  Barnes,  one  of 
the  defendants,  and  of  certain  servants 
of  the  defendants,  and  that  through 
their  negligence  the  injury  was  sus- 
tained ;  and  it  was  never  urged  that 
the  action  should  have  been  trespass, 
and  not  case,  because  one  of  the  defen- 
dants was  on  board,  but  on  the  ground 
of  the  injury  being  immediate.  In  Ro- 
gers V.  imbledon,  2  N.  R.  117,  which 
was  decided  after  Leame  v.  Bray,  it  was 
alleg-ed  that  the  defendant  was  driving 


410 


SMITHS     LEADING     CASES. 


a  cart  and  took  such  bad  care  of  the 
cart  and  horse,  that  it  ran  with  great 
force  against  the  plaintiff's  horse.  To 
that  there  was  a  demurrer  upon  the 
authority  of  Learne  v.  Bray,  the  action 
being"  in  case ;  but  the  court  was  clearly 
of  opinion  that  case  would  lie,  and  the 
demurrer  was  overruled.  In  Huggett 
V.  Montgomery,  2  N.  R.  446,  although 
the  defendant  was  on  board,  yet  the 
ship  was  not  under  his  immediate  care, 
and  management,  but  under  that  of  a 
pilot ;  and  on  that  ground  case  was  held 
to  be  the  proper  form  of  action.  It  is 
not  necessary  to  say  that  trespass  could 
not  in  this  case  have  been  sustained 
against  Hardern ;  no  doubt  that  action 
lies  where  an  injury  is  inflicted  by  the 
wilful  act  of  the  defendant ;  but  there 
is  no  doubt  that  case  lies  where  the  act 
is  negligent  and  not  wilful."  This  judg- 
ment has  been  cited  at  some  length, 
because  it  contains  a  complete  history 
of  the  progrres  of  the  law  up  to  the  deci- 
sion in  Moreton  v.  Hardern.  The  right 
of  the  plaintiff  to  bring  case,  where  the 
act  for  which  he  sues  although  commit- 
ted with  immediate  force,  is  negligent, 
not  wilful,  is  fully  established  in  Wil- 
liams V.  Holland,  10  Bingh.  118,  where 
all  the  previous  cases,  liaving  any  bear- 
ing on  the  subject,  will  be  found  collect- 
ed in  the  argument  of  Jones,  Serjeant. 
The  declaration  charged  that  the  defen- 
dant so  carelessly,  unskilfully,  and 
improperly  drove  his  gig,  that  through 
the  carelessness,  negligence,  unskilful- 
ness,  and  improper  conduct  of  the  defen- 
dant, the  said  gig  struck  w'ith  great 
violence  ao-ainst  the  cart  and  horse  of 
the  plaintiff.  The  jury  having  found  a 
verdict  of  guilty  on  the  ground  of  negli- 
gence, it  was  objected  that  the  action 
should  have  been  trespass  not  case ;  bijt 
the  Court  of  Common  Pleas  were  of 
opinion  that  Moreton  v.  Hardern  had 
"  laid  down  a  plain  intelligible  rule,  that 
where  the  injury  is  occasioned  by  the 
carelessness  and  negligence  of  the  de- 
fendant, the  plaintiff  is  at  liberty  to 
bring  an  action  on  the  case,  notwith- 
standing the  act  is  immediate,  so  long 
as  it  is  not  a  wilful  act."  See  also 
Wheatly  v.  Patrick,  2  Mee.  &  W'elsb. 
651 ;  and  there  are  other  instances  in 
which  the  plaintiff  has  his  choice  of  case 
and  trespass,  as  where  one  man  builds 
his  house  overhanging  that  of  another, 
so  that  the  rain  falls  on  it ;  Wells  v. 
Ody,  Judgment  of  Parke,  B.,  1  M,  &, 
W.  4G2 ;  Raine  v.  Alderson,  4  Bing.  N. 


C.  702.  [See  Fay  v.  Prentice,  1  M., 
Gr.  &  S.  828.]  It  is,  however,  clear 
from  Leame  v.  Bray,  and  Chandler  v. 
Brougtiton,  1  Cr.  &  Mee.  29.  3  Tyrwh. 
220,  that  the  plaintiff  ma}',  if  he  please, 
bring  trespass  whenever  the  injury  ia 
immediate,  even  though  it  be  not  wilful ; 
and  it  is  equally  clear  that,  where  the 
injury,  which  forms  the  gist  of  the  action, 
is  both  wilful  and  immediate,  trespass  is 
the  only  remedy.  Savignac  v.  Roome, 
6  T.  R.  125 ;  Day  v.  Edwards,  5  T.  R. 
648;  Weeton  v.  Woodcock,  7  Dowl. 
853.  The  words  which  form  the  gist 
of  the  action,  are  printed  in  italics,  be- 
cause it  is  apprehended  that  the  propo- 
sition laid  down  by  Blackstone,  J,,  in 
the  text,  p.  215,  is  correct,  viz.  that 
wherever  a  trespass  occasions  conse- 
quential damage,  the  trespass  itself  may 
be  waived,  and  case  brought  for  the 
consequential  damage.  See  Wells  v. 
Ody,  5  Dowl.  95;  Raine  v.  Alderson,  4 
Bing.  N.  C.  702.  See  however,  the 
judgment  of  Parke,  B.,  in  Weeton  v. 
Woodcock,  7  Dowl.  857.  In  Comyn's 
Digest,  Action  on  the  Case,  B.  (6),  the 
distinction  is  clearly  stated  as  follows, 
viz.  "  So  it  (i.  e.  case)  does  not  lie  for  a 
mere  trespass,  as  for  taking  down  the 
walls  and  pulling  down  the  tiles  from  a 
house,  unless  it  be  alleged  that  the  tiiti' 
her  was  thereby  rotted,  1  Roll.  104." 

Where  the  defendant  elects  to  sue 
in  case  for  an  immediate  but  negligent 
act  of  violence,  he  must  pay  much  atten- 
tion to  the  wording  of  his  declaration, 
and  take  care  to  introdnce  no  expres- 
sions which  import  an  exertion  of  wilful 
force.  In  Day  v.  Edwards,  5  T.  R. 
648,  a  declaration  in  case  alleged  that 
the  defendant  '■'■so  furiously,  negligently 
and  improperly  drove  his  cart  and  horse, 
that  through  [he  furious,  negligent,  and 
improper  conduct  of  the  defendant,  the 
cart  and  horse  were  driven  against  the 
plaintiff's  carriage."  This  was  held 
bad  on  special  demurrer  ;  and  is  distin- 
guished from  Williams  v.  Holland,  by 
Tindal,  C.  J.,  on  the  ground  that  the 
declaration  imported  wilful  violence,  10 
Bing.  116.  There  is  sometimes  a  good 
deal  of  difficulty  in  determining  whether 
a  count  be  in  case  or  trespass ;  see 
Hensworth  v.  Fowkes,  4  B.  &  Ad.  461. 
Smith  v.  Goodwin,  Ibid.  413.  Holland 
v.  Bird,  10  Bing.  15. 

There  are  other  instances  in  which 
trespass  and  case  lie  concurrently. 
Where  goods  are  tortiously  taken  out 
of    the    plaintiff's    possession,    trover, 


SCOTT    V.     SHEPHERD. 


411 


which  is  of  a  form  of  action  on  the  ca«e, 
may  be  maintained  for  the  conversion, 
which,  and  not  the  tortious  tukinff,  is 
then  the  gist  of  the  action;  and  "if 
trover  will  lie,  which  is  only  a  subdivi- 
r*91Ql  ^'°"  "*"  action  on  the  *case,  why 
L  ■^  -I  should  not  case  also  in  its  more 
expanded  form  !"  per  Tindal,  C  J.,  in 
Holland  V.  Bird,  10  Bing.  18.  In  liiat 
case  the  form  of  the  count  was,  that 
the  defendant  having  distrained  the 
plaintift''s  goods  for  rent,  the  plaintiff 
tendered  the  rent  in  arrear  and  the 
costs  of  the  distress,  which  the  defend- 
ant ought  to  have  accepted,  and  re-de- 
livered plaintitf's  goods,  but  wrongfully 
refused  so  to  do ;  this  was  held  the  pro- 
per subject  of  an  action  on  the  case. 
See  on  the  same  point  Branscombe  v. 
Bridges,  1  B.  &  C.  145.  Smith  v.  Good- 
win,^4  B.  &  Ad.  413.  [Lear  v.  Calde- 
cott,  4  Q.  B.  123.] 

Another  class  of  cases,  and  certainly 
rather  an  anomalous  one,  comprehends 
actions  for  criminal  conversation  and 
for  seduction  ;  for  both  which  injuries 
trespass  and  case  are  held  to  lie  concur- 
rently. See  2  T.  R.  167 ;  6  East,  3SS. 
In  Woodward  v.  Walton,  2  New  Rep. 
476,  the  declaration  contained  two 
counts  ;  the  first  stating  that  the  defen- 
dant broke  and  entered  the  plaintiff's 
house,  and  there  assaulted  and  debauched 
his  daughter;  the  second  omitted  the 
breaking  and  entering  the  dwelling- 
house,  but  stated  that  the  defendant 
assaulted  and  debauched  his  daughter, 
per  quod  servitiam  ainisit.  On  a  motion 
to  arrest  judgment,  the  question  was 
learnedly  argued,  and  tiie  previous 
authorities  on  both  sides  cited  ;  and  the 
court,  after  consideration,  were  of  opin- 
ion tiiat  the  action  was  rightly  brought. 
"  In  actions  like  the  present,"  said  Sir 
J.  Mansfield,  C.  J.,  delivering  judgment, 
"  as  far  as  my  recollection  goes,  the 
form  of  the  declaration  has  always  been 
in  trespass,  vi  et  armis  et  contra  paccm. 
I  cannot  distinguish  between  this  action 
and  an  action  for  criminal  conversation, 
If  that  be  the  subject  of  trespass,  this 
must  be  so  too.  In  the  action  for  crimi- 
nal conversation,  the  violence  is  not  the 
ground  of  the  action ;  both  in  that  case 
and  this,  if  the  injury  were  committed 
with  violence,  it  would  amount  to  a  rape. 
I  therefore  do  not  see  any  good  reason 
why  either  of  them  should  be  the  sub- 
ject of  an  action  of  trespass.  In  actions 
by  a  master  for  an  assault  on  his  ser- 
vant, per  quod  servitium  amisit,  there  is 


no  trespass  against  the  plaintiff;  the 
sole  foundation  of  the  action  is  liie  loss 
of  service.  Yet  this  also  has  been  con- 
sidered as  an  action  of  trespass.  All 
these  cases  are  the  same  in  principle, 
and  fall  within  the  same  rule."  His 
lordship  then  cited  and  commented  upon 
several  of  the  authorities,  and  concluded 
by  stating  himself  perfectly  satisfied 
that  the  injury  complained  of  was  the 
subject  of  an  action  of  trespass;  accord. 
Ditcham  v.  Bond,  2  M.  &  S.  430,  where 
Woodward  v.  Walton  was  recognised, 
and  acted  upon. 

One  class  of  cases,  illustrative  of  the 
distinction  between  case  and  trespass, 
consists  of  those  in  which  the  subject- 
matter  of  complaint  is  an  arrest.  If  one 
man  maliciously  and  without  probable 
cause  procure  another  to  be  arrested 
either  by  civil  or  criminal  process,  that 
is  the  subject-matter  of  an  action  on  the 
case,  for  the  tort  consists  not  in  any 
immediate  violence  to  the  plaintifi"'s 
person,  but  in  communicating  an  impro- 
per direction  to  the  process  of  the  law, 
Elsee  V.  Smith,  1  13.  &  R.  97 ;  but,  if 
the  defendant,  without  having  recourse 
to  legal  process,  make  the  arrest,  or 
assist  in  making  it,  of  his  own  authority, 
or  direct  a  constable  to  make  it,  the  rem- 
edy is  trespass,  for  in  that  case  he  com- 
mits an  unwarranted  act  of  violence; 
Stonehouse  v.  Elliott,  6  T.  R.  315  ;  and 
so  it  is  if  he  come  armed  with  void  pro- 
cess, foV  that  is  as  none ;  Parsons  v. 
Lloyd,  3  VVils.  341.  See  Bates  v.  Pil- 
ling, 6  B.  &  C.  28 ;  as,  for  instance,  if 
it  describe  the  defendant  by  a  name  by 
which  he  is  not  known,  Fnich  v.  Cock- 
en,  5  Tyrwh.  775 ;  though  it  is  other- 
wise if  the  process  be  merely  irregular, 
for  then  it  stands  good  until  set  aside, 
Riddell  v.  Pakeman,  5  Tyrwh.  721.  But 
when  set  aside,  it  is  as  none ;  and  in 
Codrington  v.  Lloyd,  8  A.  &  E  449,  the 
fact  that  it  had  been  set  aside  was  re- 
plied, the  attorney  in  such  a  case  is  lia- 
ble as  well  as  the  plaintiff,  ibid.  [See 
Davies  v.  Jenkin.s,  11  M.  &  W.  745; 
Green  v.  Elgie,  5  Q.  B.  99.] 

In  Briant  v.  Chiton,  4  Dowl.  60,  it 
was  held  that  if  defendant  imprison 
plaintiff"  by  the  process  of  a  superior 
court,  and  plaintiff  bring  trespass,  he 
will  make  out  a  prima  facie  case  by 
showing  the  imprisonment  in  conse- 
quence of  defendant's  act;  and  defend- 
ant, to  discharge  himself,  must  plead 
specially,  S.  P.  Sovvcll  v.  Champion,  6 
A.  &  E.  416,  per  curiam.     But  the  ne- 


412  smith's     LEADING     CASES. 

cessity  of  pleading  specially  only  exists  When  a  count  in  trespass  is  impro- 

where  the  judgment  has   been   legally  perly  substituted  tor  one  in  case,  or  vice 

proceeded   on  so  as   to  justify   the   act  versa,  or  when   trespass   and  case    are 

done  by  the  officer;  for  where  the  attor-  misjoined,   the   mistake    may  be    taken 

ney's  defence  is  that  he  sued  out  a  legal  advantage  of  on   general   demurrer,  or 

writ  on  a  legal  judgment,  and  that  tiie  motion  in  arrest  of  judgment,  or  writ  of 

sheriff  of  his  own  wrong  executed  it  error.    Savignac  v.  Koome,  6  T.  R.  125  ; 

illegally,  that  is  a  defence  under  not  see  Cowp.  407  ;  1  B.  &  P.  476  ;  Weeton 

guilty.     Sovvell  v.  Champion,  ubi  sup.  v.  Woodcock,  7  Dowl.  853. 


The  actions  of  trespass  vi  et  armis,  and  trespass  on  the  case,  are  as  well 
distinguished  in  principle,  as  any  other  two  actions  in  the  law. 

Physical  force,  however  slight,  against  the  person  or  possession  of 
another,  is,  in  itself  and  essentially,  without  regard  to  the  motive,  unlawful, 
and  is  the  gist  or  gravamen  of  the  action  of  trespass  vi  et  armis.  "  The 
criterion  of  trespass,  is, force  directly  applied:''''  C  J.  Tilghman,  in  Smith 
and  another  v.  Rutherford  and  another,  2  Sergeant  &  Rawle,  358. 

Trespass  on  the  case,  is  a  general  remedy,  to  recover  compensation  for 
damages  which  have  resulted  from  ihe  fraudulent  conduct  of  another  ;  and 
anj?-  conduct  is  in  law  deemed  a  fraud,  and  actionable  within  the  scope  of 
this  remedy,  which,  though  not  unlawful  in  itself,  yet  by  its  natural  and 
ordinary  consequences,  injures  any  right  of  the  plaintiff",  without  fault  in 
him,  and  is  not  done  in  the  exercise  or  lawful  pursuit  of  defendant's  rights  ; 
for  the  law  always  presumes  that  a  man  has  intended  that  which  is  the 
natural  or  reasonable  result  of  his  conduct,  and  which  might,  and  ought  to, 
have  been  foreseen  by  him.  Through  all  the  phases  this  action  assumes, 
its  gist  still  is  fraud:  and  though  it  lies  to  recover  damage  occasioned  by  a 
material  or  physical  tort,  yet  ihe  force,  or  tortious  act,  itself,  is  not  the  gist 
of  the  action,  as  it  is  in  trespass  vi  et  armis,  but  the  negligence,  careless- 
ness, or  other  fraudulent  conduct  of  the  defendant,  by  which  the  tort  was 
occasioned. 

That ybrce  is  the  gist  of  trespass,  and  fraud  upon  the  whole  case  between 
the  parties  at  the  lime  of  suit  brought,  the  gist  of  case,  is  shown  by  the 
pleadings :  for  in  the  former  action,  under  the  general  issue,  the  office  of 
which  in  all  actions,  is  to  traverse  that  which  is  the  gravamen  or  substan- 
tial matter  in  the  declaration,  only  the  force,  and  defendant's  property  can 
be  denied,  but  in  the  latter  action  under  the  same  general  issue,  evidence 
of  excuse,  justification,  or  satisfaction  may  be  given.  Gilchrist  v.  Bale,  8 
Watts,  355.  358. 

There  is,  therefore,  an  essential  and  legal  difference  in  the  ground  of  the 
two  actions :  but  the  choice  between  them  may  often  be  determined  by  the 
nature  and  extent  of  the  compensation  sought.  If  the  act  of  force,  itself, 
be  made  the  gist  of  the  action,  that  is  to  say,  if  trespass  be  brought,  of  course, 
no  more  can  be  recovered  than  the  value  of  the  injury  which  the  act  in 
itself,  and  at  once,  was ;  or,  in  other  words,  the  damage  involved  in  the  act 
at  the  time  of  its  taking  place,  though  perhaps  subsequently  developed  ; 
("  immediate  or  obviously  probable  consequences,"  Avery  v.  Ray  et  al.,  1 
Massachusetts,  12.)     Robinson  v.  Slokely,  3  Watts,  270  ;  Spigelmoyer  v. 


SCOTT     V.     SHEPHERD.  413 

Walter,  3  Watts  &  Sergeant,  540  ;  Sampson  v.  Coy,  15  Massachusetts,  493. 
But  if  compensation  is  sought  for  some  damage  entirely  collateral,  the  frau- 
lent  conduct  of  the  defendant  on  the  whole  case  must  be  made  the  ground 
of  the  action  ;  that  is,  the  action  must  be  case.  Thus,  in  the  instance  put 
by  Powell,  J.,  in  11  Mod.  180,  if  there  be  false  imprisonment,  suit  may  be 
broucrht  upon  the  forcible  injury  to  the  person,  and  that  will  be  trespass, 
and  damages  will  be  recovered  to  the  extent  to  which  the  rights  of  person 
have  beeii'damnified  ;  but  if  the  detention  have  caused  a  collateral  loss,  as 
by  forfeiture  of  a  recognizance  to  appear,  there  the  fraudulent  detentiori 
is  the  ground  of  the  action,  and  it  must  be  case.  See  the  general 
principle  discussed  in  Cotteral  v.  Cummins  and  another,  6  Sergeant  & 
Rawle,  343. 

If  there  be  actual /orce,  but  not  negligence,  that  is,  if  the  force  be  wilful, 
trespass  is  the  only  remedy.  If  there  he  force,  and  also  negligence,  that  is, 
if  the  forcible  act  proceed  from  negligence,  \he  force  may  be  made  the  gra- 
vamen of  the  action,  and  then  it  must  be  trespass ;  (Guille  v.  Swan,  19 
Johnson,  381  ;)  or  the  iiegUgence  may  be  made  the  gist,  and  then  it  must 
be  case  ;  (and  this  is  the  point  decided  in  Williams  v.  Holland  ;)  Blin  v. 
Campbell,  14  Johnson,  432  ;  Percival  v.  Hickey,  18  id.  257  ;  M'Allister  v. 
Hammond,  6  Cowen,  342  ;  Dalton  v.  Favour,  jr.,  3  New  Hampshire,  465; 
Knott  V.  Digges,  6  Harris  &  Johnson,  230;  Johnson  v.  Castleman  & 
Ormsby,  2  D^ina's  Kentucky,  377.  But  elsewhere  it  has  been  decided, 
that  under  such  circumstances,  trespass  is  alone  the  proper  action.  Taylor 
V.  Rainbow,  2  Henning  and  Munford,  423;  Gates  and  others  v.  Miles,  3 
Connecticut,  64  ;  Case  &  Davis  v.  Mark,  2  Hammond's  Ohio,  169;  Wal- 
dron  V.  Hopper,  Coxe,  339;  Barnes  v.  Hurd,  11  Massachusetts,  57.  No 
doubt,  in  principle,  these  last  decisions  are  right,  for  trespass  is  a  writ  at 
common  law  and  of  course,  and  case  is  extraordinary  and  judicial :  but  the 
convenience  of  the  latter  for  recovering  all  the  special  and  remote  damage 
recommends  it  to  practice. 

If  a  servant,  without  the  authority  or  assent  of  his  master,  commit  a  tort, 
the  servant's  liabiUty  will  be  case  or  trespass,  according  to  the  circum- 
stances :  but  the  master's  will  always  be  case  ;  Barnes  v.  Hurd,  11  Massa- 
chusetts, 57  ;  Germanlown  R.  Rl' v.  Wilt,  4  Wharton,  143.     The  master 
is  liable  for  only  those  wrongs  of  his  servant,  which  result  from  incapacity 
and  negligence  in  the  course  of  his  employment  or  duty,  and  not  for  his 
wilful  Trespasses;  because  only  those  injuries  which  are  done  in  the  course 
of  the  employment,  and   proceed  from   incompetency,  which  was   a  fault 
existing  at  the  time  of  his  appointment,  and   likely  to  produce  damage,  are 
fairly  claused   by  the  master's  employing  him.     Foster  and  another,  exe- 
cutors, v.  The  Essex  Bank,  17  Massachusetts,  479 :  and  for  the  distinction 
between  negligent  and  wilful  acts,  compare  M'Caw  v.  Kimbul,  4  M'Cord, 
220,  with  Schmidt  &  Webb  v.  Blood  &  Green,  9  Wendell,  268.     But  if  the 
inaster  command  or  advise  the  trespass  of  the  servant,  or  make  himself  in 
any  way  accessory,  he  becomes  a  principal  trespasser ;  as  in  the  case  of  a 
sheriff,  who  is  hable  as  a  principal,  whenever  the  deputy  acting  under  his 
authority  is  a  trespasser.      See  Dolph  v.  Ferris,  7  Watts  &  Sergeant,  367. 
Actions  per  quod  servitium  amisit,  for  seduction,  abduction,  or  corporal 
injury,  of  a  child,  are  all  founded  on  the  relation  of  master  and  servant,  and 
not  that  of  parent  and  child;  but  when  the  action  is  grounded  by  proof  of 


414  smith's   leading   cases. 

some  interest  in  the  service  of  the  child,  the  damages  may  be  swelled  by 
proof  of  incidental  expenses,  and  injury  to  feeling,  though  these  are  not  in 
themselves  substantive  causes  of  action. — The  father  of  a  child  under 
twenty-one,  may  maintain  the  action  though  the  child  does  not  live  with 
him,  because  he  has  a  legal  interest  in  the  service  of  the  child.  Martin  v. 
Payne,  9  Johnson,  387  ;  Hewitt  v.  Prime,  21  Wendell,  79  ;  Hornketh  v. 
Barr,  8  Sergeant  &  Rawle,  36  ;  Helffenstein  v.  Thomas,  5  Rawle,  209.  212  ; 
and  a  guardian  has  the  same  interest  and  the  same  right  of  action.  Ferns- 
ler  V.  Moyer,  3  Watts  &  Sergeant,  416.  In  other  cases,  some  evidence  of 
a  state  of  servitude  existing  or  continuing  must  be  given ;  but,  in  case  of 
the  father  after  the  child  is  twenty-one;  of  the  putative  father;  one  in  loco 
parentis  ;  or  the  mother ;  slight  acts  of  service,  or  probably  merely  living 
with  the  plaintiff,  would  be  competent  evidence  of  the  relation  :  but  in  case 
of  a  mere  stranger,  probably  full  proof  of  a  contract  of  service  is  necessary. 
Nickleson  v.  Stryker,  10  Johnson,  115;  Miller  v.  Thompson,  1  Wendell, 
447 ;  South  v.  Denniston,  2  Watts,  474  ;  Logan  v.  Murray,  6  Sergeant  & 
Rawle,  175 ;  Moritz  v.  Garnhart,  7  Watts,  302 ;  Wilson  v.  Sproul,  3  Pen- 
rose &  Watts,  49;  dicta  in  Weckerly  v.  Lutheran  Congregation,  3  Rawle, 
172.  176. — This  action  may  be  either  trespass,  Hoover  v.  Heim,  7  Watts, 
62,  Goddard  v.  Wagner,  1  M'Cord,  100,  or  case.  Ream  v.  Rank,  3  Sergeant 
&  Rawle,  215;  Parker  v.  Elliott,  Gilmer,  33  ;  S.  C.  Munford,  587  ;  Haney 
V.  Townsend,  1  M'Cord,207;  see  the  note  p.  138  to  M'Clure's  Executors 
V.  Miller,  4  Hawks,  (N.  Car.)  133.  In  Ream  v.  Rank,  and  Wilt  v.  Vickers, 
8  Watts,  227,  it  is  indicated  that  if  the  minor  child  be  living  in  the  father's 
house  at  the  time,  trespass  is  the  more  proper  ;  but  if  out  of  it,  case  :  and 
that  trespass  quare  clausum  fregit  will  lie  in  the  former  case,  is  held  in  Clough 
V.  Tenney,  5  Greenleaf,  446 ;  and  in  such  action,  it  is  said  in  Schuylkil  Nav. 
Co.  V.  Farr,  4  Watts  &  Sergeant,  363.  377,  that  the  plaintiff  maj)-  give  in  evi- 
dence the  debauching  of  his  daughter,  under  alia  enormia,  but  not  loss  of  ser- 
vice or  any  other  matter  that  would  of  itself  bear  an  action,  for  such  matter 
must  be  slated  specially.  See  Moran  v.  Dawes,  4  Cowen,  412,  where  the 
distinctions  are  considered ;  and  case  held  to  be  always  safe.  It  has  also 
been  held  that  for  forcible  abduction  of  a  servant,  trespass  is  more  proper ; 
for  enticing  a  servant  away,  case  alone.  Legaux  v.  Feesor,  1  Yeates,  586  ; 
Jones  &  Gully  v.  Tevis,  4  Litlell,  25. 

For  injury  to  a  servant,  the  old  forms  are  trespass,  upon  the  principle, 
that  the  master  has  an  interest  in  his  servant,  and  possession  of  him,  so  that 
disabling  the  servant  is  a  direct  forcible  injury  to  the  master's  interest  and 
possession:  and  the  per  quod  servitium  w^as  necessary  to  be  added,  not  as 
the  allegation  of  a  collateral  and  special  injury,  but  to  show  that  such  was 
the  relation  of  the  parties,  and  so  great  the  injury,  that  the  battery  was  a 
direct  injury  to  the  master's  interest  and  possession  :  but  in  modern  times 
the  per  quod  has  generally  been  considered  as  the  allegation  of  a  special 
and  consequential  damage  ;  in  which  view  case  is  more  appropriate. 

H.  B.  W. 


COOl'ER     V.     CIIITTY.  415 


*COOPER  I'.  CHITTY.  [    *220    ] 

HIL.  27  GEO.  II.  K.  B. 

[reported  1  BURR.  20.(«)] 

The  title  of  a  bankrupt's  assignees  relates  back  to  the  Act  of  Bankruptcy ;  and  the 
shcritr  wlio  has  seized  the  goods  of  a  bankrupt  after  the  act  of  bankruptcy,  but  before 
commission,  and  sold  them  after  the  commission  and  assignment,  is  liable  to  the  assig- 
nees in  trover. 

This  cause  was  twice  argued  ;  it  came  first  before  the  court  on  Monday, 
the  9lh  of  June,  1755;  and  again  upon  Tuesday,  the  16th  instant.  It  was 
an  action  of  trover,  brought  by  the  assignees  of  William  Johns,  a  bankrupt, 
against  the  sheriffs  of  London,  who  had  taken  and  sold  the  goods  of  Johns, 
in  execution  under  a  fieri  facias,  which  had  issued  against  Johns,  at  the  suit 
of  one  William  Godfrey. 

On  the  trial  a  special  case  was  settled  : 

Which  case  states,  that  Johns  was  regularly  declared  a  bankrupt  on  the 
8th  of  December,  1753.  And  as  to  the  rest,  the  following  times  and  facts 
were  stated  ;  viz.,  that  on  the  5th  of  December,  1753,  one  Godfrey  obtained 
judgment  in  the  Common  Pleas  against  the  said  Johns:  and  on  the  same 
day  (5th  December,  1753)  execution  upon  the  said  judgment  was  taken  out 
against  him  by  Godfrey,  and  the  goods  seized  by  the  sheriffs,  under  it ;  that 
Johns  committed  the  act  of  bankruptcy  on  the  4th  of  December,  1753,  and 
on  the  8lh  of  the  same  December,  a  commission  of  bankruptcy  was  taken 
out  against  him  ;  and,  on  the  very  same  day  the  commissioners  of  bank- 
ruptcy executed  an  assignment ;  and  afterwards,  viz.,  on  the  28lh  of 
December,  a  bill  of  sale  of  the  goods  was  made  by  the  sheriffs.  The  plain- 
tiffs are  the  assignees  under  the  commission:  the  defendants  *are  r-^nn-i-i 
the  sheriffs  of  London,  who  seized  the  goods  under  the  execution.     L         J 

The  point  was,  whether  the  assignees  under  the  commission  of  bank- 
ruptcy can  maintain  an  action  of  trover  against  the  sheriffs,  who  executed 
this  process  under  a  regular  judgment  and  execution,  for  seizing  the  goods, 
under  a  fieri  facias,  issued  and  executed  after  the  act  of  bankruptcy  was 
committed;  and  selling  them  after  the  assignment  was  executed. 

The  counsel  who  argued  for  the  plaintiffs  made  two  questions,  viz. : 

1st.  Whose  property  the  goods  were,  when  seized  by  the  sheriffs,  by 
virtue  of  this  fieri  facias  ; 

2ndly.  Whose  property  they  were,  when  sold  by  the  sheriffs. 

1st  (Question.  After  the  act  of  bankruptcy  they  ceased  to  be  the  pro- 
perty of  the  bankrupt  himself,  they  said ;  wheresoever  else  the  property 
might  be,  between  the  act  of  bankruptcy  and  the  assignment. 

This  relation  to  the  act  of  bankrupty  is  like  that  of  administrations  to  the 
time  of  the  death  ;  and  they  cited  Kiggil  v.  Player,  1  Salk.  Ill,  as  S.  P. 
with  the  present  case,  exactly. 

(a)  Tuesday,  23d  Nov.  1756. 


416  smith's     LEADIXG     CASES. 

The  utmost  that  the  bankrupt  himself  could  be  pretended  to  have  was  a 
special  property,  defeasible  by  the  assignment.  It  is  like  the  case  of  a 
distress  for  rent ;  where  the  seizor  may  sell  the  distress,  after  five  days : 
but  if  the  money  be  paid  within  the  five  days,  he  cannot  sell :  so  that,  in 
the  interim,  the  right  is  defeasible. 

Here,  the  plaintiffs  have  declared  as  assignees  under  the  commission  of 
bankruptcy  ;  therefore,  their  interest  vests  as  from  the  time  of  the  act  of 
bankruptcy. 

If  the  bankrupt  himself  had  delivered  the  goods  to  a  stranger,  it  had 
been  the  same  thing  :   the  stranger  would  be  answerable  to  the  assignees. 

Sheriffs  execute  process  at  their  peril  :  they  are  answerable  civiliter  for 
what  they  do  upon  it.      11  H.  4,  90.     14  H.  4,  25. 

A  man  may,  without  his  own  fault,  be  possessed  of  a  horse  which  has 
been  stolen:  but  nevertheless  he  is  answerable,  civiliter,  to  the  true  owner 
for  it. 

r*oooT  ^^^  sheriff  had  no  authority  to  take  any  goods  in  execution  *but 
L  J  the  goods  of  the  defendant :  if  he  does  take  any  other  goods,  he  is  a 
trespasser. 

In  writs  of  execution,  it  is  at  their  peril,  if  they  take  another  man's  goods. 
In  Carthew,  381,  Hallett  v.  Byrt,  it  is  so  laid  down  by  Chief  Justice  Holt, 
expressly. 

Now  these  were  goods  of  the  assignees.  And  they  may  maintain  an 
action,  either  against  the  plaintiff  in  the  cause,  or  the  sheriff",  or  the  vendee 
of  the  goods  :  and  the  sheriff' is  the  properest  person  against  whom  to  bring 
the  action. 

The  gist  of  an  action  of  trover  is  the  conversion  :  the  finding  is  not  the 
material  part. 

And  they  cited  several  Nisi  Prius  cases  of  actions  brought  by  assignees 
of  bankrupts,  viz, : 

M.  11  G.  1,  trover  by  Vanderhagen  et  al.,  assignees  of  Daniel,  a  bank- 
rupt, V.  Rewise,  a  serjeant-at-mace  of  the  city  of  London  ;  S.  P.  with  the 
present.     Lord  Chief  Justice  Pratt  held  the  action  maintainable. 

The  S.  P.  was  also  before  Lord  Chief  Justice  Lee,  in  a  case  of  Bloxholm 
assignee  of  Mills,  a  bankrupt  v.  Oldham  et  al,  at  the  sittings  after  Trinity, 
1750,  at  Guildhall:  in  trover  against  a  sheriff,  and  the  former  plaintiff  and 
the  vendee  (all  of  them  together).  It  was  objected  "  that  the  sheriff  ought 
to  be  acquitted  :  but  overruled  ;  and  verdict  against  all  three. 

The  seizure  there  was  before  the  commission,  but  after  the  act  of  bank- 
ruptcy. 

The  second  question  is,  "  Whose  the  goods  were  at  the  time  of  the  sale," 
The  writ  only  commands  the  sheriff"  to  sell  the  defendant's  goods  :"  and 
if  he  sell  the  goods  of  another  person,  it  is  a  conversion. 

It  is  beyond  doubt  that  the  assignment  has  relation  to  the  act  of  bankrupt- 
cy ;  and  the  assignees  stand  in  the  bankrupt's  place  from  that  time.  1 
Ventr.  993,  Monk  v,  Morris  and  Clayton,  proves  this,  and  2  Co.  25. 

Here  then  the  assignees  had  all  the  property  that  the  bankrupt  had,  at 
the  time  of  his  act  of  bankruptcy.  Consequently,  the  absolute  dominion 
was  in  them:  and  the  sheriff  could  not,  after  such  assignment,  sell  them 
as  the  defendant's.  Indeed,  sheriffs  seldom  do,  in  fact,  sell  the  goods  with- 
out indemnity.     But  the  sheriff  has  here  committed  an  error,  in  selling 


COOPER    V.    cniTTY. 


417 


them  at  all :  for  they  were  not  the  defendant's.  He  might,  it  is  true,  have 
summoned  a  *jury  to  inquire  "  whose  goods  they  were."  But  still  .^^ai 
even  their  verdict  Cannot  affect  the  right   of  the  true  owner  ol  the  t- 

ffoods.  ,,     ^        , 

The  point  about  relation  backwards,  does  not  at  all  affect  the  question  as 
to  the  sale.     For  the  assignment  was  prior  to  the  sale,  though  not  to  the 

And  they  affirmed  that  the  sheriff  not  only  might,  but  even  ought,  in  this 
case,  to  have  returned  "  nulla  bona  ;  that  would  have  been  the  proper  and 
the  true  return.  And  if  it  had  been  disputed,  he  then  might  have  brought 
the  money  into  court.  There  is  a  case,  of  Rex  v.  Brein,  Bailiff  of  the 
Savoy,  I  Keb.  901,  where  the  goods  were  claimed  under  a  bill  of  sale  ; 
the  sheriff  returned  »  nulla  bona  :"  and  the  money  was  ordered  to  be  brought 
into  court  by  the  sheriff;  and  the  return  to  be  made  agreeable  to  the  event 
of  a  trial  of  the  validity  of  the  pretended  bill  of  sale,  after  such  validity 
should  be  tried  in  an  action. 

In  the  present  case,  the  defendants  knew  of  the  assignment  before  they 
sold  the  goods,  whatever  they  might  do  when  they  seized  them.  And  they 
could  not  possibly  be  obliged  to  sell  them  :  it  is  contrary  to  an  express  act 
of  parliament,  which  vests  the  property  in  the  assignees.  So  that  here  the 
sheriff  has  sold  the  goods,  not  of  the  bankrupt,  but  of  the  assignees.      _ 

And  supposing  that  the  plaintiffs  may  bring  an  action  against  the  plain- 
tiff in  the  original  action,  or  against  the  ven&ee  of  the  goods;  yet  they 
seem,  both  of'them,  to  have  better  excuses  than  the  sheriff  has  :  and  are 
more  innocent.  Therefore,  why  should  the  assignees  be  turned  round  to 
them,  when  they  can  undoubtedly  maintain  either  trespass  or  trover  against 
the  sherilis,  who  have  sold  the  goods,  which  is  a  conversion,  and  will  sup- 
port an  action  of  trover.  That  the  plaintifls  have  this  election,  to  bring 
either  trespass  or  trover,  appears  from  Cro.  Eliz.  824,  Bishop  v.  Lady 
Montague,  and  Cro.  Jac.  50,  S*  C. 

Therefore  they  concluded  that  the  action  was  well  brought. 

The  counsel  who  argued  for  the  defendants,  the  sheriffs,  agreed  that  the 
matter  would  turn  upon  the  solution  of  the  questions   made  by  the  other 

side.  J    -    , 

As  to  the  first  question,  they  said  it  would  be  very  hard  it  this  action 
should  lie  against  the  sheriffs,  and  they  be  put  *to  controvert  the  act  ^.224] 
of  bankruptcy  which  is  a  matter  not  at  all  within  their  knowledge. 

They  argued  that  the  sheriffs  should  not  be  considered  as  wrong-doers  : 
and,  to  prove  it,  cited  1  Lev.  95,  Turner  v.  Felgate  ;  Raym.  73,  S. 
C,  2  Sidevf.  126,  S.  C,  and  1  Keble,  822,  S.  C.  ;  1  Lev.  173,  Bayly  v. 
Dunning;   1  Siderf.  271,  S.  C,  and  2  Keble,  32,  33,  S.  C. 

The  only  acts  of  the  sheriffs  that  can  be  considered  as  a  conversion,  are 
the  acts  of  seizure  and  sale. 

Now  they  were  compellable  by  the  writ  of  fieri  facias  to  seize  the  goods 
and  levy  the  debt. 

For  till  the  commission  and  assignment  the  property  was  in  the  bank- 
rupt:  and  it  did  not  appear  that  a  commission  ever  would  be  taken  out. 

1  Sulk.  108,  Gary  v.  Crisp,  is  express  in  point,  "  that  the  property  is  in  the 
bankrupt  till  assignment."     It  was  there  resolved  that  the  property  of  the 

Vol.  I 27 


418  smith's   leading   cases. 

goods  is  not  transferred  out  of  the  bankrupt  till  assignment.     2  Str.  981, 
Brassey  et  al  v,  Dawson  et  al.,  accord. 

1  Lev.  173,  Bayly  v.  Bunning.  Judgnaent  was  for  the  officer:  he  being 
obliged  to  execute  the  writ,  and  could  not  know  of  the  act  of  bankruptcy, 
or  that  any  comnnission  would,  ever  be  sued  :  and  the  sheriff  was  holden 
not  to  be  liable,  although  he  had  notice  of  the  assignment. 
1  Siderf.  272,  S.  C.  The  taking  was  holden  lawful. 
Comberb.  123,  Lechmere  v.  Thorowgood.  The  officer  shall  not  be  made 
a  trespasser,  by  relation.     3  Mod.  236,  S.  C.  1  Shpwer,  12,  S.  C. 

The  commission  of  bankruptcy  makes  no  alteration  till  assignment :  and 
after  assignment  there  shall  be  a  relation,  so  far  as  to  avoid  all  mesne  acts   " 
of  the  bankrupt,  and  even  to  over-reach  this  judgment-creditor.     Thus  far 
they  admitted. 

But  they  insisted  that  the  action  ought  not  to  have  been  brought  against 
the  sheriff". 

The  sheriff'  is  to  seize,  sell,  and  return  his  writ.  In  proof  of  this  they 
cited  2  Ld.Raym.  1072.  1074.  Clerk  v.  Withers,  1  Salk.  322,  323,  S.  C. 
(3d  point),  6  Mod.  283.  299,  S.  C,  1  ^  Siderf.  29.  Harrison  v.  Bowden, 
Cro.  Eliz.  235.  Mountney  v.  Andrews,  1  Roll.  Abr.  Execution,  893, 
Letter  B.  pi.  2,  Dyer,  98,  b.  and  99,  a.,  s.  57,  and  the  two  cases  there  cited 
j^  -,  in  the  margin  ;  and  Cro.  Eliz.  597,  *Charter  v.  Peeter.  From  all 
L  -I  which  cases,  it  appears  that  the  sheriff  is  not  liable  to  be  molested. 
1  Salk.  321,  Kingsdale  v.  Mann,  proves  that  the  seizure  is  the  essential 
part  of  the  execution  ;  and  an  execution  is  an  entire  thing;  and  cannot  be 
stopped  after  it  is  once  begun.     2  Show.  79,  Cockram  v.  Welby. 

And  after  the  sheriff  had  seized  the  goods,  the  original  plaintiff' (William 
Godfrey)  could  oblige  the  slieriffto  return  his  writ:  and  yet  upon  the  prin- 
ciples advanced,  the  sheriff' must  be  put  under  the  greatest  hardships.  And 
he  had  no  method  to  make  the  assignees  of  the  bankruptcy  to  give  him  any 
assistance  towards  proving  the  act  of  bankruptcy. 

Indeed  the  execution  is  good,  though  the  writ  be  never  returned.  5  Rep. 
90  a.,  Hoe's  case  (1st  resolution). 

The  only  return  the  sheriff  could  make,  must  be,  "  that  he  had  levied  the 
money"  (which  could  only  be  by  sale.)  Therefore  he  was  obliged  to  sell. 
Consequently  the  law  Vv'ill  not  make  him  a  wrong-doer  by  selling. 

The  following  cases  they  said  were  in  point  for  them,  viz.,  1  Lev.  173, 
Bailey  v.  Bunning  ;  2  Keble,  32,  33,  S.  C. ;  1  Siderf,  271,  S.  C.  3  Lev. 
191,  Phillips  V.  Thompson.  1  Show.  12,  Lechmere  et  al.  v.  Thorowgood 
et.  al.  ;  Comb.  123,  S.  C. ;  3  Mod.  236,  S,  C. ;  and  Cole  v.  Davies  et  al., 
1  Ld.  Raymond,  724,  per  Holt,  in  point,  as  against  the  sheriff,  most 
expressly. 

And  the  present  plaintiffs  may  have  an  adequate  and  complete  remedy 
against  the  plaintiff  in  the  original  action. — As  to  the  cases  cited,  the  gen- 
tlemen who  have  argued  on  the  other  side,  put  it  upon  the  question,  "who 
had  the  property  of  the  goods  ?" 

Now  the  property  was  in  the  bankrupt  at  the  time  of  the  execution  :  it 
was  not  in  abeyance  ;  as  it  is  in  the  case  of  an  administration.  (Which  is 
an  answer  to  the  case  of  Kiggil  v.  Player.) 

The  sheriff  is  not  in  the  case  of  a  stranger  ;  for  he  was  obliged  to  exe- 
cute and  return  the  writ. 


COOPER    V.     CHITTY.  419 

Indeed  the  sheriff  is  to  execute  the  writ  at  his  peril :  and  Carthew,  381, 
is  so  :  the  reason  is,  because  the  sheriff  may  impanel  a  jury,  to  inquire 
"whose  the  goods  are."  But  here  there  were  no  means  for  the  sheriff  to 
indemnify  himself :  the  goods  were  undoubtedly  then  the  goods  of  Wil- 
liam Johns,  *even  though  he  had  then  committed  an  act  of  bank-  r*226] 
ruptcy. 

The  assignees  have  not  a  right  to  recover  the  specific  goods,  but  only 
damages. 

Trespass  will  lie  against  the  plaintiff  in  the  original  action,  even  before 
he  receives  the  money  ;  though  trover  indeed  would  not  till  after. 

It  is  not  certain  that  an  action  will  lie  against  the  vendee  of  the  sheriff. 

As  to  Vanderhagen's  case,  it  is  not  sufficiently  clear  how  it  was,  or  why 
it  was  determined. 

But  as  to  the  case  of  Bloxham  v.  Oldham,  Mr.  Henley  did  nott  insist  on 
the  objection,  "  that  the  action  did  not  lie  against  the  sheriff;"  because  it 
would  not  help  his  client;  for  in  that  case  the  sheriff  and  the  plaintiff  in  the 
original  action  were  both  of  them  defendants.  And  the  case  of  1  Leo.  173, 
was  not  indeed,  by  Lord  C.  J.  Lee,  thought  apposite  to  that  case  :  but  it 
was  not  over-ruled  by  him.  And  the  goods  were  certainly  the  goods  of  the 
bankrupt  till  assignment. 

tN.  B.  Mr.  Hume,  who  was  counsel  for  the  defendant  in  that  case  of 
Bloxham  v,  Oldham,  agreed,  that  the  objection  against  the  sheriff's 
being  a  defendant  was  not  insisted  upon  ;  because  the  plaintiff  in  the 
original  action  (who  was  also  a  co-defendant  with  the  sheriff  there) 
had  indemnified  the  sheriff:  so  that  it  was  really  a  point  quite  imma- 
terial to  the  plaintiff  (who  was  at  all  events  liable  to  the  action). 

They  added,  that  this  was  a  point  of  great  consequence  to  all  sheriffs  and 
officers  ;  on  the  other  hand,  creditors  cannot  be  injured,  though  sheriffs 
should  be  excusable  and  the  original  plaintiff  only  should  be  liable  to  the 
action. 

As  to  what  has  been  said  of  security  taken  by  the  sheriff — the  court  can 
take  no  notice  of  a  sheriff's  taking  security;  nor  can  they  suppose  him 
conusant  of  a  private  unknown  act  of  bankruptcy:  and  it  would  be  very 
hard  if  an  innocent  officer  should  be  hurt  by  retrospection  and  relation. 

They  agreed  that  this  execution  may  be  avoided  as  against  the  original 
plaintiff;  2  Strange,  981,  Brassey,  et  al.  v.  Dawson  et  al.,  is  a  proof  that 
it  may.  But  they  denied  ''it,  as  to  rendering  the  officer  liable  to  an  r-^inc,'j-[ 
action  ;  for  he  is  excusable,  as  appears  from  the  cases  before  cited.    L         -^ 

As  to  the  second  question. — The  foundation  of  this  action  of  trover,  is 
property  in  the  plaintiff  at  the  time  of  the  seizure,  and  a  tortious  and  illegal 
act  of  conversion  ;  for  without  both  these  circumstances,  action  will  not  lie. 

Now  the  property  is  in  the  bankrupt,  till  assignment :  and  the  subsequent 
sale  cannot  make  the  sheriff  a  wrong-doer  by  a  fictitious  relation.  Raym. 
161,  Bilton  V.  Johnson  et  al.  "  The  relation  of  a  teste  shall  not  justify  a 
tort." 

It  is  said  that  "this  relation  is  given  by  act  of  parliament."  But  there 
are  no  words  in  the  act  of  parliament  that  can  make  the  sheriff  a  wrong- 
doer. 

If  the  seizure  was  lawful,  the  sale  was  so  too.  2  Ld,  Raym.  1074.  107G, 
Clerk  V.  Withers.    Cro.  Jac.  515,  Sly  v.  Finch.     Cro.  Eliz,  440,  Bouchci 


420  smith's   leading    cases. 

V.  Wiseman.  March  13,  Parkinson  v.  Colliford  et  al.,  executors  of  a  sheriff; 
Cro.  Car.  539,  S.  C.  ;  1  Jones,  430,  S.  C.  Hob.  206,  Speake  v.  Richards. 
Cro.  Eliz.  231,  Mounteney  v.  Andrews.  The  Jaw  considers  the  whole 
execution  as  one  eniire-act:  the  intermediate  days  are  only  allowed  for  the 
sake  of  the  sheriff.  Consequently  he  may  execute  the  whole  at  once  :  he 
may  seize  and  sell  directly.  The  execution  is  an  entire  thing,  and  cannot 
be  stopped.  Cro.  Eliz.  "697,  Charter  v.  Peeter.  6  Mod.  293,  Clerk  v. 
Withers.     Therefore  the  officer  shall  be  protected. 

Suppose  an  action  should  be  brought  against  the  sheriff  for  the  money. 
He  might  avail  himself  perhaps  by  special  pleading,  provided  he  was  able 
to  make  out  the  facts  he  should  specially  plead  :  but  how  could  he  be  able 
to  prove  the  act  of  bankruptcy,  trading,  or  assignment?  to  all  which  he  is 
an  entire  stranger.  Therefore  it  would  be  hard  to  suffer  such  an  action  to  be 
maintained  against  him.  But  all  these  matters  are  in  the  privity  of  the 
original  plaintiff;  against  whom,  therefore,  the  action  ought  to  be  brought. 
It  is  said,  "  the  sheriff  acts  at  his  peril." 

But  it  is  admitted  that  the  method  of  impannelling  a  jury  would  be  no 
protection  to  him. 

The  counsel  for  the  plaintiffs  replied,  that  it  is  stated  "that  the  assign- 
ment by  the  commissioners  of  bankruptcy  was  previous  to  the  bill  of  sale 
by  the  sheriffs." 

r*99Sl  '^'^^  sheriff's  being  always  a  responsible  person,  and  ^therefore 
L  J  most  likely  to  be  made  defendant,  is  the  very  reason  why  he  ought 
to  be  liable  to  the  party  who  has  received  the  injury. 

The  finding,  or  even  the  taking  possession  of  goods  found,  is  no  wrong; 
but  it  is  the  conversion  that  makes  the  person  a  tort-feasor. 

They  admitted  that  the  sheriff  is  not  answerable  for  the  irregularity  of  a 
judgment  (for  he  is  bound  to  execute  the  command  ofthe  writ.)  But  if  he 
take  the  goods  of  another  person,  instead  of  the  goods  of  the  defendant,  he  is 
answerable  for  that. 

It  has  been  said,  indeed,  that  "  they  were  at  that  time  the  goods  of  the 
bankrupt  himself." 

But  be  the  taking  lawful,  or  not  lawful,  yet  here  is  an  actual  conversion, 
an  actual  disposition  ofthe  goods ;  which  makes  him  a  trespasser  ab  initio. 

It  has  likewise  been  said,  that  "the  court  will  protect  the  sheriff."  But 
the  relation  goes  back  quite  up  to  the  act  of  bankruptcy. 

They  denied  that  the  execution  is  so  entire  that  the  sheriff  cannot  stop 
in  it,  after  seizure  and  before  sale  of  the  goods.  Suppose  the  sheriff'  had 
confessedly  seized  another  person's  goods,  should  he  be  obliged  to  sell  them  ? 
Dallon's  Office  of  Sheriff  says,  "that  the  sheriff  may  impannel  a  jury  ;  and 
after  that  shall  not  be  answerable."  Now  here  he  might  either  have  impan- 
nelled  a  jury,  or  have  kej)t  the  money  in  his  hands,  Or  brought  it  into  court, 
till  the  property  of  the  goods  had  been  determined. 

They  admitted  the  general  principle  of  the  cases  cited  on  the  head  of 
executions ;  but  denied  the  application  of  them  to  the  present  case.  They 
also  denied  the  principle,  "  that  a  sheriff  shall  never  be  a  tort-feasor  by  rela- 
tion ;"  for  he  shall  in  some  cases  be  so,  as  wdiere  he  takes  the  goods  with  a 
bad  original  intention. 

As  to  Bailey  v.  Bunning,  they  endeavouTed  to  distinguish  it.  In  order 
to  which,  they  remarked  that  there  is  no  finding  of  an  actual  conversion,  or 


COOPER    V.     C  11  ITT  Y.  421 

of  what  coiilJ  be  called  so,  by  the  court:  it  is  only  a  demand  and  refusal; 
which  is  only  evidence  to  a  jiii'y.(t)  And  the  opinion  of  the  court  there 
went  upon  the  taking,  which  they  held  to  be  legal;  whereas  here  is  an 
actual  conversion  stated.  An  action  would  lie,  one  would  think,  against  the 
vendee  of  the  sheriff  in  *point  of  reason,  and  the  practice  does  p-Kooq-i 
strongly  support  it;  for  nine  in  ten  of  these  actions  are  brought  L  -^ 
against  the  vendees  of  the  sheriff. 

In  the  case  of  Bloxham  v.  Oldham,  there  was  a  very  material  difference, 
"whether  the  sheriff  should  have  a  verdict  for  him,  or  a  verdict  against 
him;"  for  in  the  one  case,  he  would  receive  costs;  in  the  other  he  must 
pay  theni. 

The  plaintiffs  had  no  right  to  call  upon  the  sheriff,  till  the  return  of  the 
writ;  and  they  might  then  have  returned  "  nulla -bona."  Therefore  this  is 
not  such  a  hard  case  upon  the  sheriffs,  as  is  suggested.  And  this  is  not  the 
only  case  where  the  sheriff  is  to  act  at  his  peril :  for  in  taking  of  bail,  &c., 
he  must  do  so,  as  well  as  here. 

If  the  sheriff  had  returned  "  nulla  bona,"  the  onus  probandi  would  have 
lain  upon  the  original  plaintiff. 

In  the  case  of  Turner  v.  Felgate,  the  sheriff  was  certainly  excusable  by 
virtue  of  his  writ. 

In  the  case  of  Cole  v.  Davies  et  al.,  in  1  Ld.  Raym.  724,  the  goods 
were  sold  before  the  commission  and  assignment.  For  the  case  is  there 
put,  of  a  commission  and  assignment,  both  of  them  subsequent  to  the  sale  of 
the  goods.  The  words  are,  "  If  he  seizes  and  sells,  and  then  a  commission 
is  granted,  and  the  goods  assigned,  the  assignee  may  maintain  trover  against 
the  vendee  :  but  no  action  will  lie  against  the  sheriff,  because  he  obeyed  the 
writ. 

But  our  reasoning  in  the  present  case  is  founded  upon  the  sale's  being 
an  unlawful  act. 

In  the  case  of  Brassey  et  al.  v.  Dawson  et  al.,  there  was  no  assignment 
previous  to  the  seizure. 

They  did  not  deny  that  the  bankrupt  had,  in  the  present  case,  a  sort  of 
property,  a  defeasible  property,  in  him  at  the  time  of  taking  the  goods.  But 
in  the  case  of  Clerk  v.  Withers,  (reported  in  6  Mod.  290,  and  in  1  Salk. 
323,  and  in  2  Ld.  Raym.  1072,)  the  defendant  in  the  action  had  the  whole 
indefeasible  property  in  him  ;  and  the  sheriff  ought  to  have  gone  on  ;  but 
that  case  is  not  applicable  to  the  present  case,  where  the  property  was  only 
defeasible. 

As  to  the  cases  cited  from  Hob.  206,  and  March,  13.  They  agreed  to 
them. 

The  time  allowed  to  the  sheriff  makes  no  difference,  they  said;  because 
he  has  done  wrong. 

And  however  entire  a  thing  an  execution,  in  general,  may  be,  yet  here  it 
was  irregularly  executed. 

*The  truth  of  the  return  of  "nulla  bona,"  in  this  case,  depends  p^poA-i 
upon  the  present  question.  L         J 

It  is  very  frequent  for  sheriffs  to  be  entangled  in  difficulties  about  their 
returns.      Here,  he  might  have  taken  a  writ  de  proprietate  probanda. 

(t)  See  notes  to  Wilbrahain  v.  Snow,  2  Wms.  Saund.  47,  e. 


422  smith's  leading   cases. 

Bailey  v.  Bunning  turned  upon  the  taking. 

Lechraere  et  al.  v.  Tliorowgood  only  proves  "  that  the  goocis  were  in  cus- 
todia  legis."  And  so  they  were  :  but  to  the  purposes  of  the  law  ;  which,  in 
the  present  case,  is  for  the  benefit  of  the  creditors  of  the  bankrupt. 

Curia  advisare  vult. 

And  now  (Tuesday  23rd  Nov.  1756)  Lord  Mansfield  delivered  the  opin- 
ion of  the  court;  and  said  they  were  all  agreed,  as  well  his  two  brethren 
then  present  in  court,  as  his  brother  Wilmot,  (who  was  at  present  engaged 
in  another  place,)  in  their  opinion. 

There  are  few  facts  essential  in  this  case  :  and  it  lies  in  a  narrow  compass. 

He  then  stated  the  case,  (which  see  p.  222,  ante  ;)  and  was  very  parti- 
ticular  in  specifying  the  dates  of  the  several  transactions. 

The  general  question  is,  "  whether  or  no  the  action  is  maintainable  by  the 
assignees,  against  the  defendants,  the  sheriflis,  who  have  taken  and  sold  the 
goods." 

It  is  an  action  of  trover. 

The  bare  defining  the  nature  of  this  kind  of  action,  and  the  grounds  upon 
which  the  plaintiff  is  entitled  to  recover  in  it,  Aviil  go  a  great  way  towards 
the  understanding,  and  consequently  towards  the  solution,  of  the  question  in 
this  particular  case. 

In  form  it  is  a  fiction  :  in  substance,  a  remedy  to  recover  the  value  of 
personal  chattels  wrongfully  converted  by  another  to  his  own  use. 

The  form  supposes  the  defendant  may  have  come  lawfully  by  the  posses- 
sion of  the  goods. 

This  action  lies,  and  has  been  brought  in  many  cq^es  where,  in  truth,  the 
defendant  has  got  the  possession  lawfully. 

Where  the  defendant  takes  them  wrongfully,  and  by  trespass,  the  plain- 
tiff, if  he  thinks  fit  to  bring  this  action,  waves  the  trespass,  and  admits  the 
possession  to  have  been  lawfully  gotten. (*) 

^^       ,       Hence,   if  the  defendant    delivers  the  thing  upon  demand,  no 
L         J  *damages  can  be  recovered  in  this  action  for  having  taken  it. 

This  is  an  action  of  tort :  and  the  whole  tort  consists  in  the  wrongful 
conversion. 

Two  things  are  necessary  to  be  proved,  to  entitle  the  plaintiff  to  recover 
in  this  kind  of  action  :  1st,  property  in  the  plaintiff;  and  2dly,  a  wrongful 
conversion  by  the  defendant. 

As  to  the  first,  it  is  admitted  in  the  present  case  that  the  property  was  in 
the  plaintiffs,  as  on  and  from  the  4ih  of  December,  (which  was  before  the 
seizure,)  by  relation. 

This  relation  the  statutes  concerning  bankrupts  introduced,  to  avoid 
frauds.  They  vest  in  the  assignees  all  the  property  that  the  bankrupt  had 
at  the  time  of  what  I  may  call  the  crime  commiltedt,  (for  the  old  statutes 
consider  him  as  a  criminal:)  they  make  the  sale  by  the  commissioners 
good  against  all  persons  who  claim  by,  from,  or  under  the  bankrupt,  after 
the  act  of  bankruptcy  ;  and  against  all  executions  not  served  and  executed 
before  the  act  of  bankruptcy. (|) 

(*)  Pco  note  to  §cott  v.  Shepherd,  ante,  [*218]. 

(t)  But  see  now  6  G.  4,  c.  16,  sec.  81  and  sec.  86  ;  see  also  see.  108,  and  st.  1  W.  4  c.  7, 
scc.'7.  Cumminf^  v.  Welsford,  6  Bin<r.  r)U'2.  Godson  v.  Sanctuary,  4  B.  &  Ad,  255. 
Crossfield  v.  Stanley,  4  B.  &.  Ad.  87,  and  the  late  act  of  2  Vict.  cap.  29. 


COOPER    V.     C  H  1  T  T  T.  423 

Depositions  by  process  of  law  are  put  upon  the  same  foot  with  deposi- 
tions by  the  party  ;  to  be  valid,  they  nmst  be  completed  before  the  act  of 
bankruptcy. 

Till  the  making  of  19  Geo.  2,  c.  32,  if  the  bankrupt  had  bona  fide  bought 
goods,  or  negotiated  a  bill  of  exciiange,  and  thereupon,  or  otherwise,  in  the 
course  of  trade  paid  money  to  a  fair  creditor,  after  he  himself  had  committed 
a  secret  act  of  bankruptcy;  such  bona  fide  creditor  was  liable  to  refund  the 
money  to  the  assignees,  after  a  commission  and  assignment ;  and  the  pay- 
ment, though  really  and  bona  fide  made  to  the  creditor,  was  avoided  and 
defeated  by  the  secret  act  of  bankruptcy. (f) 

This  is  remedied  by  that  act,  in  case  no  notice  was  had  by  the  creditor, 
(prior  to  his  receiving  the  debt,)  "that  his  debtor  was  become  a  bankrupt, 
or  was  in  insolvent  circumstances." 

Therefore,  as  to  the  first  point,  it  is  most  clear,  that  the  property  was  in 
the  plaintiffs,  as  on  and  from  the  4th  of  December,  when  the  act  of  bank- 
ruptcy was  committed. 

2ndly.  The  only  question  then  is,  "Whether  the  defendants  are  guilty 
of  a  wrongful  conversion." 

That  the  conversion  itself  was  wrongful,  is  manifest. 

The  sheriff  has  no  authority  to  sell  the  goods  of  *the  plaintiffs  ;  p^ooon 
but  of  William  Johns  only ;  they  ought  to  have  delivered  these  L  -^ 
goods  to  the  plaintiffs,  the  assignees.  Upon  the  foundation  of  the  legal 
right,  the  chancellor,  even  in  a  summary  way,  would  have  ordered  them  to 
be  delivered  to  the  assignees. 

It  is  admitted,  on  the  part  of  the  defendants,  that  the  innocent  vendee 
of  the  goods  so  seised  can  have  no  title  under  the  sale,  but  is  liable  to  an 
action  ;  and  that  Godfrey,  the  plaintiff",  would  have  no  title  to  the  money 
arising  from  such  sale,  but  if  he  received  it,  would  be  liable  to  an  action  to 
refund. 

If  the  thing  be  clearly  wrong,  the  only  question  that  remains  is, 
"  whether  the  defendants  are  excusable,  though  the  act  of  conversion  be 
wrongful  ?" 

Though  the  statutes  concerning  bankrupts  rescind  all  contracts  and  exe- 
cutions, not  completed  before  the  act  of  bankruptcy,  and  vest  the  property  of 
the  bankrupt  in  the  assignees,  by  relation,  in  order  to  an  equal  division  of  his 
estate  among  his  creditors,  yet  they  do  not  make  men  trespassers  or  crimi- 
nal by  relation,  who  have  innocently  received  goods  from  him,  or  executed 
legal  process,  not  knowing  of  an  act  of  bankruptcy  :  that  was  not  neces- 
sary, and  would  have  been  unjust. 

The  injury  complained  of  by  this  action,  for  which  damages  are  to  be 
recovered,  is  not  the  seizure,  but  the  wrongful  conversion. 

The  assignment  was  made  upon  the  8th  of  December  ;  the  sale,  not  till 
the  28th  of  December  ;  the  return,  not  till  the  octave  of  Saint  Hilary,  which 
is  the  20lh  of  January. 

The  sheriff  acts  at  his  peril  ;  and  is  answerable  for  any  mistake  :  infinite 
inconveniences  would  arise,  if  it  were  not  so. 

(t)  Soe  now  G  Geo.  4,  c.  IG,  sec.  83.  Craven  v.  Edmondson,  6  Binjjli.  733.  Carter  v. 
Breton,  6  Binor.  G17.  Cannan  v.  Dcnew,  10  Bing.  292.  Hill  v.  Farrcll,  9  B.  &  C.  45,  and 
St.  2  V Let.  c.  29. 


424  smith's   leading   cases. 

At  the  time  of  the  sale  and  return,  it  was  more  notorious  "  that  these 
goods  belonged  to  the  plaintiffs,  than  it  could  probably  have  been  in  the  case 
of  any  third  person  ;  because  commissions  of  bankruptcy,  and  the  proceed- 
ings under  them,  are  public  in  the  neighbourhood,  and  indeed  all  over  the 
kingdom. 

This  conversion  is  twenty  days  after  the  assignment. 
The  defendants  have  here  made  a  direct  false  return  :  they  have  returned 
"  that  they  took  the  defendant's  goods,  &c.,"  whereas  they  were,  at  the 
P^  -.  time  of  the  return,  ^notoriously  the  goods  of  the  assignees,  when 
«-  -'  they  were  taken.  They  certainly  might,  and  ought  to  have  returned 
"  ntilla  bona  ;"  which  was  the  truth  :  for  the  goods  taken  were,  beyond  all 
manner  of  doubt,  the  goods  of  the  assignees,  at  the  time  when  the  sheriffs 
took  them ;  and  the  bankrupt  could  have  no  goods,  after  the  4th  of  Decem- 
ber, when  he  had  committed  an  act  of  bankruptcy.  They  would  have 
been  justified  by  the  truth  of  the  fact,  if  they  had  made  this  return  :  for  the 
bankrupt  neither  had  nor  could  have  any  goods  of  his  own,  at  that  time. 
It  is  arguing  in  a  circle,  to  say  "that  they  could  not  return  nulla  bona, 
because  they  were  obliged  to  sell ;  and  they  were  obliged  to  sell,  because 
they  could  not  return  nulla  bona." 

The  seizure  is,  here,  out  of  the  case  :  for  the  point  of  this  action  turns 
upon  the  injurious  conversion. 

Therefore,  we  are  all  of  opinion  that  the  plaintiff  is  entitled  to  recover  in 
this  action. 

But  objections  have  been  made,  by  the  gentlemen  who  have  argued  this 
case  on  behalf  of  the  defendants. 

It  has  been  said  "  that  the  execution  is  entire  ;  for  the  debt  is  discharged 
by  a  seizure  in  fi.  fa.  That  being  entire,  if  once  lawfully  begun,  it  must  be 
completed  ;  for  goods  taken  by  a  fi.  fa.  shall  be  sold  by  the  representative 
of  the  sheriff." 

"  That  they  shall  be  sold,  though  the  plaintiff  dies;  and  the  money  arising 
from  the  sale  shall  not  be  recovered  back  by  the  defendant:"  which  is  the 
case  of  Clerk  v.  Withers,  1  Salk.  323  ;  2  Lord  Raym.  1072,  S.  C.  ;  and  6 
Mod.  290,  S.C. 

"That  a  writ  of  error  is  no  supersedeas." 

"  That  the  sale  by  the  sheriff  shall  not  be  avoided  against  the  vendee,  by 
a  subsequent  writ  of  error  and  reversal  ;"which  is  the  third  point  in  Matthew 
Manning's  case,  in  8  Co.  96. 

Answer.  All  this  is  true,  and  upon  the  plainest  reason,  as  between  the 
plaintiff  and  defendant,  parties  to  the  judgment,  in  consequence  of  which 
the  execution  issues  ;   but  no  way  applicable  to  the  case  of  a  third  person. 

None  of  these  cases  authorise  the  sheriff  to  sell  the  goods  of  a  third  per- 
son :  and  it  is  admitted  that  the  vendee  is  not  protected  here  ;  because,  at 
the  time  of  the  sale,  the  sheriff  had  no  authority  to  sell. 
^       -.       *rHe  then  went  minutely  through  the  cases  ;  showing  the  grounds  ' 
L         -^  upon  Avhich  the  determinations  proceeded,  as  against  the  parties  to 
the  judo-ment,  who  are  bound  by  it  and  everything  done  in  consequence  of 

But  the  argument,  from  these  principles  to  the  present  case,  is  this  : 
"Here  the  taking  was  lawful ;  and,  therefore,  the  sheriff  was  bound  to  com- 


COOPER    V.    C  H  I  T  T  Y.  425 

plete  the  execution  by  a  sale."     Answer.     The  premises  are  not  true  ;  and 
if  they  were,  the  conclusion  would  not  follow. 

The  takina  was  not  lawful:  because  they  were  then  the  goods  of  a  third 

person. 

But  if  the  taking  were  lawful,  the  sheriff  ought  not  to  go  on  to  a  sale,  after 
a  full  discovery  that  the  goods  then  belonged  lo  a  third  person. 

To  prove  the  taking  lawful,  and  that,  therefore,  the  sheriffs  shall  not  be 
liable  to  an  action,  were  cited  the  case  of  Bailey  v.  Banning,  reported  in 
1  Leon.  173,  174  ;  1  Siderf.  272,  and  2  Keble,  32,  33  ;  Lechmere  v.  Tho- 
rowgood,  in  Comb.  123  ;  1  Shower,  12,  and  3  Mod.  236  ;  and  Cole  v.  Davies 
et  al,,  1  Lord  Raym.  724. 

The  fallacy  of  the  argument,  from  the  authority  of  these  cases,  turns 
upon  using  the  word  "  lawful,"  equivocally  in  two  senses. 

To  support  the  act,  it  is  not  lawful :  but  to  excuse  the  mistake  of  the 
sheriff,  through  inavoidable  ignorance,  it  is  lawful.  Or,  in  other  words,  the 
relation  introduced  by  the  statutes  binds  the  property  :  but  men,  who  act 
innocently  at  the  time,  are  not  made  criminals  by  relation  ;  and,  therefore, 
they  are  excusable  from  being  punishable  by  action  or  indictment,  as  tres- 
passers. AVhat  they  did  was  innocent,  and,  in  that  sense,  lawful  :  but,  as  a 
ground  to  support  a  wrongful  conversion,  by  sale  after  a  commission  publicly 
taken  out,  and  an  actual  assignment  made,  it  was  not  lawful. 

In  the  case  of  Bailey  v.  Bunning,  the  goods  were  clearly  bound  by  the 
teste.  It  is  best  reported  in  Levinz.  The  question  referred  by  the  special 
verdict  was  upon  the  taking,  viz.  "  whether  the  party  was  guilty  in  the 
taking  :"  and  the  court  excuse  the  bailiff  for  his  innocent  executing  his 
writ."^  The  case  of  Phillips  v.  Thompson,  in  3  Levinz,  192,  expressly  says 
«'  that  this  resolution  in  the  case  of  Bailey  v.  Bunning,  *was  only  in  p^235] 
excuse  of  the  bailiff  for  executing  the  -writ. 

Siderfin  does  not  seem  to  know  what  the  court  was  going  upon  :  for  the 
court  tied  it  up  to  the  taking  :  whereas  he  does  not  seem  to  distinguish 
between  the  trover  and  the  trespass.     Vide  1  Siderf.  272. 

The  case  of  LeChmere  v.  Thorowgood  is  best  reported  in  1  Show.  12. 
And  this  report,  which  is  the  only  clear  state  of  it  in  any  of  the  reports, 
puts  it  singly  upon  the  making  the  officers,  who  had  good  authority,  and 
took  the  goods  lawfully,  trespassers  by  relation. 

Comberbach,  in  giving  the  judgment  of  the  court,  which  Is  the  only 
sensible  part  of  his  whole  report,  (for  it  is  plain  to  me,  that  he  did  not 
understand  the  former  argument  on  the  former  day,  which  is  the  first  part 
of  his  report  of  the  case,)  agrees  with  Showers  ;  and  says  that  "the  court 
were  of  opinion  that  a  construction  should  not  be  made,  to  make  the  officer 
a  trespasser  by  relation  :  for  the  taking  was  lawful  at  the  time."  But  he 
must  be  mistaken  in  the  first  part  of  this  report :  for  Lord  Chief  Justice 
Holt  could  never  say,  "  that  the  property  of  the  goods  is  vested  by  the 
delivery  of  the  fieri  facias  ;  and  the  extent  for  the  King  afterwards  comes  too 
late."  No  inception  of  an  execution  can  bar  the  crown  :(t)  this  matter  was 
lately  very  fully  discussed  in  the  Court  of  Exchequer  in  the  case  of  the 
King  V.  Cotton. 

As  to  the  case  of  Cole  v.  Davies  et  al.,  reported  in  1  Lord  Raym.  724, 
«'  that  no  action  will  lie  against  the  sheriff,  who,  after  the  bankruptcy,  seizes 
(t)  Giles  V.  Grover,  9  Bing.  528. 


428  smith's   leading  cases. 

and  sells  the  goods,  under  a  fieri  facias  to  him  directed;"  which  is  there 
said  to  be  ruled  by  Lord  Chief  Justice  Holt  at  nisi  prius,  in  Hil.  10  Wil.  3. 
These  notes  were  taken  in  10  JV.  3,  when  Lord  Raymond  was  young,  as 
short  hints  for  his  oion  use:  but  they  are  too  incorrect  and  inaccurate,  to 
be  relied  on  as  authorities.  The  note  states  four  general  resolutions  upon 
evidence,  in  a  trial  at  nisi  prius  ;  but  does  not  state  the  case  or  question  to 
which  the  resolutions  were  applied  (though,  by  the  particularity  of  the 
fourth  resolution,  I  conjecture  that  to  have  been  most  immediately  adapted 
to  the  case  then  in  judgment.)  The  first  resolution  is  an  obiter  reference 
to  the  determination  in  Bailey  v.  Dunning  ;  and  it  might  not  be  at  all 
r*9QRl  i^^t^''^^^  ^0  attend  to  the  distinction  between  *trover  and  trespass. 
L  -'  Besides  the  case  there  put  is  of  a  sale  by  the  sheriff,  before  the  com- 
mission ;  and  the  conversion  might  be  as  excusable  as  the  taking,  because 
he  obeyed  the  writ :  whereas  here,  the  goods  were  not  sold  till  after  both 
commission  and  assignment.  It  is  a  loose  note  of  what  was  said  obiter:  it 
manifestly  refers  to  the  case  of  Bailey  v.  Bunning  ;  but  is  no  authority 
applicable  to  the  present  case. 

There  are,  in  the  course  of  trade,  numberless  acts  of  bankruptcy  in  fact 
committed,  where  no  commission  is  ever  taken  out.  Therefore,  it  would 
be  very  hard,  to  make  the  sheriif  a  trespasser  for  taking  the  goods  of  a  per- 
son, who  might  privately  and  secreily  have  committed  an  act  of  bankruptcy, 
and,  perhaps,  many  years  before  too^  and  on  which  no  commission  might 
ever  afterwards  issue,  and  which  the  sherifTcould  not  possibly  know.  But 
none  of  these  reasons  held,  to  justify  the  making  a  false  return,  and  selling 
the  goods  after  a  commission  and  an  assignment. 

Arguments  have  been  urged  from  inconvenience,  if  the  sherifi^should  be 
made  liable;  because  he  is  obliged  to  sell. 

But  the  sheriff  may  take  an  indemnity  from  the  plaintiff,  in  case  there  be 
a  doubt  concerning  the  property  of  the  goods.  Possibly,  this  court  might 
interfere,  if  the  sheriff  was  reasonably  doubtful  about  the  property  :  at  least, 
they  would  have  given  him  time  to  make  his  return.  Or  he  might  have 
put  it  on  the  parties  concerned  in  interest,  to  litigate  their  right,  by  filing  a 
bill  m  Chancery  against  them,  to  oblige  them  to  interplead, (t)  in  order  to 
ascertain  to  whom  the  properly  belonged.  Or  he  might  oblige  the  assig- 
nees to  prove  the  act  of  bankruptcy,  and  the  assignment. 

And  notwithstanding  what  has  been  urged  as  to  the  hardships  that  sheriffs 
will  be  under,  there  can  hardly  a  case  exist,  where  there  will  be  any  hard- 
ship upon  the  sheriff,  where  the  taking  and  sale,  or  even  the  sale  only,  are 
subsequent  to  the  assignment.  But  in  the  present  case,  the  sherifl^s  knew 
of  the  bankruptcy,  before  they  sold  the  goods. 

There  are  much  greater  hardships  upon  other  third  persons  concerned  in 
pecuniary  transactions  with  bankrupts  :  which  hardships  they  are  never- 
P,:;.no~-l  ^h^^^ss  ^^^^  subject  to;  because  it  *was  necessary  that  they  should 
L  J  be  so,  in  order  to  secure  the  end  and  intention  of  the  acts  relating  to 
bankrupts  ;  namely,  the  securing  their  effects  for  the  equal  satisfaction  of 
their  creditors. 

The  commission  and  assignments  are  both  notorious  transactions  ;  so  that 

(t)  See  now  the  Interpleader  Ac),  1  &  2  W.  4,  c.  58,  s.  6.  Isaac  v.  Spilsbury,  2  Dowl. 
211  ;  Ford  v.  Bayntoun,  1  Dowl.  357 ;  Day  v.  Waldock,  1  Dowl.  523. 


COOPER    V.     C  H  1  T  T  Y. 


427 


a  sheriff  cannot  well  be  hurt,  by  being  left  liable  to  this  action :  whereas 
there  would  be  danger,  if  it  were  otherwise,  of  great  collusion  being  prac- 
tised by  sherifls,on  these  occasions;  which  might  be  encouraged  by  a  con- 
trary resolution.  The  seizure  here  is  after  the  act  of  bankruptcy  committed, 
and,  therefore,  after  the  property  by  relation  is  vested  in  the  assignees  :  but 
that  was  innocent,  and  excusable  ;  and  the  sherif  shall  not  be  liable  by  rela- 
tion,  as  a  wrong-doer.  The  gist  of  this  action  is  the  wrongful  conversion 
by  the  sale  ;  and  false  return,  long  after  the  commission  and  assignment. 

Therefore,  per  Cur.  unanimously,  the  action  is  maintainable  in  this  case, 
against  the  defendants;  and  there  must  be  judgment  for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


That  the  right  of  the  assignees  to  the 
bankrupt's  property  dates  prima  facie 
from  the  act  of  bankruptcy,  is  so  per- 
fectly   well    known  and   elementary  a 
position,  that  it  would  be  a  mere  waste 
of  time  to  enlarge  upon  it.     In  Sims  v. 
Simpson,  1  Bingh.  N.  C.  313,  Tindal,  C, 
J.,  stated  it  to  depend  at  presenton6G. 
4,  cap.  16,  sec.  12,  which  empowers  the 
Lord  Chancellor,  on  petition  against  any 
trader  having  committed  an  act  of  bank- 
ruptcy, to  appoint  commissioners,  who 
are  to  take   such    order  and    direction 
with  the  body  of  the  bankrupt,  as  also 
with  all  his  lands,  tenements,  and  here- 
ditaments, which  he  shall   have  in  his 
own  right,  before  he  became  bankrupt, 
and  with  all    his   money,  fees,  offices, 
annuities,  goods,  chattels,  wares,  mer- 
chandize, and  debts,  wheresoever  they 
may  be  found  or  known;  and   to  make 
sale  thereof  in  the  manner  thereinafter 
mentioned.     Upon  this  general   enact- 
ment a  number  of  exceptions  have  been 
engrafted,  some  arising  out  of  the  ex- 
press words  of  the  statute,  others  out  of 
the  reasonable  and  equitable  construc- 
tion tliereof ;  (all  of  which  are  enumerat- 
ed and  discussed  in  the  various  treatises 
on  bankruptcy;)  and  finally  by  the  very 
sweeping  enactment  of  2  Vict.  2,  c.  29, 
which  confirms  all  contracts,  dealings, 
and  transactions  entered   into,  and  all 
executions  and  attachments  executed  or 
levied,  bona  fide,  before    the  date  and 
issuing  of  the   fiat,  without  notice  of  a 
prior  act  of  bankruptcy.     This  enact- 
ment, which  has  taken  place  since  the 
1st  edition  of  this  work  was  published, 
has  rendered  the  subject  of  this  note  of 
much  less  importance  tlian  it  formerly 
was.     Still  it  is  proper  to  bear  in  mind 
the  state  of  things  before  the  act,  both 
in  order  to  understand  rightly  the  eficct 


of  its  provisions,  and  to  apply  the  law  in 
those  cases  to  which  the  statute  is  inap- 
plicable. 

Cooper  V.  Chitty   became  celebrated 
on  account  of  the  frequent  discussions 
which  occurred  upon  the  question,  whe- 
ther the  liability  of  the  sheriff  in  such 
cases   was   not   to   be  confined  to  acta 
done  by  him  with  notice  of  the   bank- 
ruptcy, for  it  had  been  decided  that  tres- 
pass would  not  lie  against  him  for  taking 
the  bankrupt's  goods  in  execution,  after 
an  act  of  bankruptcy,  but  without  notice 
thereof,  and  selling  them  after  commis- 
sion and  notice.     Smith  v.  Milles,  1  T. 
R.  475 ;  Letchmere  v.  Thoroughgood,  1 
Show.  12  ;  and  one  of  the  reasons  given 
in   those   cases,  viz.,, that  officers  and 
ministers  of  justice  were  not  to  be  made 
trespassers  by  relation,  was  said  to  apply 
to  actions  of  trover  brought  against  them, 
as  well  as  actions  of  trespass,   though 
certainly    the    judgment    in    Smith   v. 
Milles  will,  to  any  person  who  will  look 
*narrowly   at    it,   appear   to   be  r*23S] 
unfavourable  to  such  an  exten-  ■-  " 
sion    of    the    principle    therein    estab- 
lished ;  for  the  court   there    appear  to 
have  thought  that  the  exemption  from 
actions  of  trespass  was  not  confined  to 
sheriffs  and  ministers  of  justice  only,  but 
was  common  to  them  with  the   king's 
other  subjects,    "  Tiiere  is  no  instance," 
says  Ashurst,  J.,  delivering  judgment, 
"  that  1  know  of,  where  a  man,  who  has 
a  new  right  given  him,  which,  for  rea- 
sons of  policy,   is  so  far  made  to  relate 
back  as  to  avoid  all  mesne  encumhrances, 
shall  be  taken  to  have  such  a  possession 
as  to  entitle  him  to  bring  trespass  for  an 
act  done  before  such  right  was  given  to 
him."  So  that  the  court  appears  to  have 
conceived   the  distinction  to   be  rather 
between  the  action  of  trespass  and  that 


428 


SMITHS     LEADING     CASES. 


of  trover,  than  between  ministers  of  jus- 
tice and  private  persons.  Indeed,  the 
judgment  proceeds:  "But  at  all  events 
the  rule  will  hold  with  respect  to  officers 
and  ministers  of  justice  ;"  and  upon  this 
some  stress  was  laid  in  Balme  v.  Hutton, 
as  also  on  a  dictum  of  Buller,  J.,  in  Ver- 
non v.  Hankey,  2  T.  R.  122,  expressed 
however  in  very  general  words.  At 
last,  in  Potter  v.  Starkie,  4  M.  &  S. 
260,  it  was  decided  that  the  sheriff  would 
be  liable  in  trover,  though  he  seized, 
.  sold,  and  paid  over  the  money  before  any 
commission  issued,  and  before  any  notice ; 
and  the  court  sajd  this  necessarily  fol- 
lowed from  Cooper  v.  Chitty,  fur  it  was 
an  unlawful  interference  with  another's 
goods.  In  Wyatt  v.  Blades,.  3  Camp. 
y96,  Lord  Ellenborough  held  the  sheriff, 
who  had  seized  and  removed  the  goods, 
after  an  actof  bankruptcy,  liable,  though, 
on  receiving  notice  from  the  assignees 
not  to  sell,  he  forbore  to  do  so.  It  was 
remarked  on  these  two  cases,  in  Balme 
V.  Hutton,  that  the  question,  whether  an 
officer  of  justice  be  entitled  to  any  pecu- 
liar exemption,  seems  hardly,  if  at  all, 
to  have  been  raised  in  them.  The  law 
now  appears  to  have  been  considered 
settled,  tor  in  Lazarus  v.  VVaithman,  5 
B.  M.  313,  Potter  v.  Starkie  was  recog- 
nised ;  in  that  case  the  seizure  and  sale 
were  both  subsequent  to  the  act  of  bank- 
ruptcy and  prior  to  the  commission  :  it 
is,  however,  remarked  in  Balme  v  Hut- 
ton, that  the  report  of  Lazarus  v.  VVaith- 
man is  silent  on  the  points,  whether  the 
sheriff  had  notice  of  the  act  of  bank- 
ruptcy, and  whether  he  was  indemnified 
(for  it  is  proper  to  observe,  that,  through- 
out the  whole  controversy,  it  has  been 
admitted,  and  indeed  was  expressly  held 
in  Balme  v.  Hutton,  that  if  the  sheriff 
be  indemnified,  he  stands  on  the  same 
ground  as  the  execution  creditor  who 
indemnified  him;  and,  in  that  case,  is 
unquestionably  liable.)  It  was  further 
remarked  on  Lazarus  v.  Waithman,  that 
none  of  the  cases  prior  to  Cooper  v. 
Chitty  were  noticed  in  it,  and  that  the 
distinction  in  favour  of  the  sheriff'  was 
not  pointed  out.  In  Price  v.  Helyar,  4 
Bingh.  597,  the  seizure  and  sale  both 
took  place  before  notice  to  the  sheriff  of 
any  act  of  bankruptcy;  this  case  was 
followed  and  recognised  by  Carlisle  v. 
Garland,  7  Bingh.  293,  and  Dillon  v. 
Ijingley,  2  B.  &  Adoh  131;  and  the 
point  was  considered  settled  against  the 
sheriff,  until,  in  Michaelmas  term,  1831, 
the  famous  case  of  Balme  v.  Hutton,  2 


Tyrwh.  17;  2  C.  &  J.  20,  occurred  in 
the  Court  of  Exchequer.  That  was  an. 
action  of  trover  for  machinery,  brought 
by  the  assignees  of  Bankartand  Benson, 
against  Mr.  Hutton,  the  sheriff  of  York- 
shire, Jewison,  the  chief,  and  Ingham, 
the  deput}^  bailifi',  of  the  Honor  of  Pon- 
tefract,  and  the  Messrs.  Wood,  creditors 
of  Bankart  and  Benson, and  to  whom  they 
had  given  a  warfant  of  attorney,  which 
was  duly  filed,  and  judgment  signed 
thereon,  upon  the  14th  November,  1^25 ; 
on  the  31st  of  December,  in  which  year, 
Bankart  and  Benson  committed  an  act  of 
bankruptcy.  On  the  25th  of  January, 
1826,  Ingham,  as  Jewison's  deputy,  seiz- 
ed the  property  in  question,  by  virtue  of 
a  warrant  directed  to  Ingham  and  Jewi- 
son, founded  on  a  fi.  fa.  which  had  issued 
upon  the  last-mentioned  judgment,  and 
was  directed  to  the  sheriff,  Mr.  Hutton. 
On  the  same  day,  the  property  was  sold 
by  Ingham  to  a  clerk  of  J\Iessrs.  Wood, 
who  executed  a  bond  of  indemnity  to 
Ingham.  On  the  21st  of  February,  a 
commission  issued  against  Bankart  and 
Benson,  under  which  the  plaintiffs  be- 
came assignees.  Neither  Mr.  Hutton, 
Jewison,  nor  Ingham  had  any  notice  of 
the  bankruptcy,  before  the  return  of 
the  fi.  fa. 

At  the  trial  a  general  verdict  was 
found  *for  Mr.  Hutton,  and  r  :j:oqQ  i 
against  Messrs.  Wood,  and  a  '■  ""  -■ 
special  verdictj  containing  the  above 
facts,  as  to  the  liability  of  Jewison  and 
Ingham. 

The  case  was  ably  argued  before  the 
Court  of  Exchequer,  and  the  court,  after 
consideration,  delivered  one  of  the  most 
elaborate  judgments  on  record. 

They  held,  1st,  that  Ingham  having 
been  indemnified  by  Messrs.  Wood,  stood 
on  the  same  footing  with  them,  and  was 
clearly  liable. 

2nd.  That  the  liability  of  Jewison 
was  not  altered  by  his  having  taken  the 
usual  indemnity  from  his  ba  ill  ft"  Ingham 
against  all  Ingham's  acts  as  deputy. 

3rd.  They  proceed  to  consider  the 
main  question,  viz.,  whether  Jewison 
was  liable  for  having  seized  and  sold 
after  the  bankruptcy,  but  without  notice 
thereof  In  order  to  determine  this, 
they  proceeded  to  a  minute  examination 
of  Cooper  v.  Cliitty,  and  the  authorities 
previous  and  subsequent  to  it,  and  ar- 
rived  at  the  conclusion,  that  the  defen- 
dant Jewison  was  exempted  from  lia- 
bility by  his  official  character,  upon  the 
ground  that  Bailey  v.  Bunning,  1  Lev. 


COOPER    V.     C  n  I  T  T  Y. 


429 


173;  Letcbmere  v.  Thoroiig-hirood,  3 
Mod.  236;  1  iSliower,  12;  Comb.  123; 
and  Cole  v.  Davies,  1  llayin.  724,  had 
established  a  distinction  between  the 
case  of  the  sherifi'  and  that  of  an  execu- 
tion creditor;  that  this  distinction  was 
supported,  not  impugned,  by  Cooper  v. 
Chitty;  that  it  was  mentioned  with  ap- 
probation in  several  cases,  which  will 
be  found  cited  and  commented  upon  in 
the  judoment;  and  that  it  was  entirely 
overlooked  in  Potter  v.  Starkie,  and  the 
subsequent  cases  which  have  heen  above 
enumerated.  Judg-mont  tlierefore  was 
given  for  Jewison  and  aj^-ainst  Ingham. 

This  judgment  was  carried  by  writ  of 
error  to  the  Exchequer  Chamber,  see 
report,  9  Bingh.  471  ;  where  it  was  re- 
versed by  Tiudal,  C.  J.,  Park,  Littledale, 
Bosanquet,  Taunton,  and  Patteson,  J.  J., 
contrary  to  the  opinion  of  Gaselee,  J. 
Lord  Tenterden,  who  had  died  pending 
the  argument,  was  stated  by  Tindal, 
C.  J.,  to  have  been  of  opinion  with  the 
majority.  In  the  mean  while,  a  writ  of 
error  had  been  brought  on  the  judgment 
of  the  Court  of  Common  Pleas,  in  Car- 
lile  V.  Garland  ;  the  judgment  of  the 
Court  of  Error  is  reported  in  3  Tyrwh. 
705;  10  Biugh.  452;  it  was  subsequent 
to  that  in  Balme  v.  Ilutton,  and  the 
judges  were  equally  divided  upon  the 
main  point,  that,  viz.,  discussed  in  Balme 
V.  Hutton  ;  Littledale,  Park,  and  Taun- 
ton, J.  J.,  and  Guiiiey,  B.,  being  of  opi- 
nion that  the  judgment  of  the  court 
below  ought  to  be  affirmed  ;  and  Den- 
man,  C.  J.,  Bayley,  Vaughan,  and  Bol- 
land,  Barons,  being  of  opinion  that  it 
ought  to  be  reversed  except  as  to  5/.,  to 
which  all  the  judges  agreed  that  the 
plaintiffs  were  entitled,  there  being  no 
doubt  that  there  had  been  a  conversion 
of  their  'goods  to  that  amount.  A  writ 
of  error  upon  this  judgment  was  after- 
wards brought  in  the  House  of  Lords, 
where  judgment  was  given  in  accord- 
ance with  the  decision  of  the  Exchequer 
Chamber  in  Balme  v.  Hutton;  Garland 
V.  Carlile,  3  Mee.  &  W.,  152,  S.  C,  4 
Bingh.  N.  C.  7. 

In  Groves  v.  Cowham,  10  Bingh.  5,  a 
point  was  determined  on  the  construc- 
tion of  the  insolvent  act,  siniilar  to  that 
decided  on  the  construction  of  the  bank- 
rupt act,  in  Cooper  v.  Chitty.  On  the 
10th  of  June,  judgment  was  signed  on 
his  cognovit  against  one  Bowler,  who. 
On  the  I'Jth  of  the  same  month,  petition- 
ed the  InsolTOnt  Debtor's  Court  for  his 
discharge;  upon  the   20th,  the  sheriff 


seized  his  goods  under  a  fi.  fa.,  issued  on 
the  above  judgment;  on  the  23rd,  Bow- 
ler assigned  all  his  effects  to  the  provi- 
sional assignee,  notice  whereof  was 
forthwith  communicated  to  the  sheriff, 
who  was  requested  not  to  sell,  which  he 
however  did,  and  paid  over  the  proceeds. 
The  court  held  that  he  was  liable  in 
trover,  in  consequence  of  the  thirty- 
fourth  section  of  7  G.  4,  c.  57 ;  which 
enacts,  that,  "in  all  cases  where  any 
prisoner,  who  shall  petition  the  court  for 
relief  under  that  act,  shall  have  execut- 
ed any  warrant  of  attorney,  &.C.,  to  con- 
fess judgment,  or  shall  have  given  any 
cognovit  actionem,  whether  for  a  valu- 
able consideration  or  otherwise,  no  per- 
son shall,  after  the  commp.ncement  of 
the  i/nprisonment  of  such  prisoner,  avail 
himself,  or  herself,  of  any  execution 
issued,  or  to  be  issued,  upon  such  war- 
rant  of  attorney,  or  cognovit  actioiiem, 
either  by  seizure  and  sale  of  the  pro- 
perty of  such  jirisoncr,  or  any  part 
thereof  or  by  sale  of  such  property 
theretofore  seized,  or  any  part  thereof; 
but  that  any  person  or  persons,  to  whom 
any  sum  or  sums  shall  be  due  in  respect 
of  any  such  warrant  of  attorney  or  cog- 
novit actionem,  shall  *and  r  *240  1 
may  be  a  creditor,  or  credi-    '-  -■ 

tors,  for  the  same  undev  that  act."  The 
court  held  that  the  words  marked  in 
italics,  effected  a  statutory  supersedeas 
of  the  execution ;  that  the  case  was, 
therefore,  governed  by  Cooper  v.  Chitty, 
and  that  trover  was  maintainable  against 
the  sheriff. 

The  assignees,  however,  in  cases  of 
this  description,  are  not  bound  to  sue  the 
sheriff  in  trover,  they  may  waive  the 
tort  and  bring  money  had  and  received 
for  the  proceeds  of  the  goods.  Kitchea 
v.  Campbell,  3  Wils.  304.  Young  v. 
Marshall,  8  Bing.  43.  Clarke  v.  Gilbert, 
2  Bmg.  N.  C.  343. 

The  danger  of  the  sheriff's  position 
is  now,  however,  greatly  lessened ;  for 
by  St.  1  &  2  Will.  4,  cap.  58,  commonly 
called  the  Interpleader  Act,  on  any 
claim  being  made  by  assignees  of  bank- 
rupts or  others,  to  any  goods  or  chattels 
taken,  or  intended  to  be  taken,  in  exe- 
cution, or  to  the  proceeds  and  value 
thereof;  the  sheriff  or  officer  may  apply 
to  the  court  from  which  the  process 
issued,  which  may  thereupon  exercise 
for  his  protection,  and  for  the  adjustmerit 
of  such  claims,  the  powers  and  authori- 
ties thereinbefore  contained  in  that  sta- 
tute, and  the  costs  of  all  such  proceed- 


€30  smith's   leading   cases. 

ings  shall  be    in  the  discretion  of  the  C.  300;  Ostler  v.  Bower,  4  Dowl.  259: 

court.     The  powers  and  authorities  al-  nor  must  he  collude  with  either  party  ; 

luded  to  are  given  by  the  previous  sec-  Braine  v.  Hunt,  4  Tyrwh.  244  ;  Cook  v. 

tions  of  the  act,  and  enable  the  court  to  Allen,  3  Tyrwli.   586;  and    the   court 

call  the  parties  before  them  by  rule,  to  will  not  receive  his  application  merely 

hear  and  adjudicate  upon   their  claims,  quia  timet,   a   claim  must  actually  have 

and,  if  necessary,  to  order  them  to  try  been  made  upon  him.    Bcntley  v.  Hook, 

an  action,  or  one  or  more  feigned  issues,  4  Tyrwh.  230.     Isaac  v.   Spilsbury,  10 

for  the  determination  thereof.     But,  in  Bingh.  3.     The   powers  given   by  this 

order  that  the  sheriff  may  avail  himself  act  for  the  relief  of  sheritts  may  now  be 

of  this  act,  he  must  be  perfectly  without  exercised  by  a  judge  sitting  at  cham- 

interest ;  Dudden  v.   Long,  1  Bing.  N.  bers.     St.  1  &  2  Vic.  c.  45,  sec.  2. 


Nothing  can  be  better  established  in  English  or  x\merican  law  than  the 
general  doctrine,  that  a  sheriff  in  executing  a  writ  proceeds  at  his  peril, 
and  that  if  he  exceed  the  authority  there  given,  although  acting  with  the 
fullest  good  faith,  he  will  be  answerable,  even  where  the  circumstances 
have  been  such,  that  the  utmost  exercise  of  prudence  or  care  on  his  part, 
could  not  have  enabled  him  to  guard  against  mistake.  There  does  not, 
however,  appear  to  have  arisen,  during  the  brief  continance  of  the  different 
bankrupt  laws,  which  have  been  in  force  in  the  United  States,  any  case  in 
which  it  has  been  determined,  whether  the  sheriff  can  be  made  so  far  a  tort- 
feasor by  relation,  as  to  become  liable  to  the  assignees  in  trover  or  trespass, 
for  seizing  goods  which,  in  consequence  of  proceedings  in  bankruptcy,  have 
proved  not  to  be  the  property  of  parlies,  to  whom,  independently  of  the 
decree,  they  would  have  belonged.  The  cases  of  Acker  v.  Campbell,  23 
Wendell,  372,  and  Ash  v.  Putnam,  1  Hill,  302,  would  appear  to  make  the 
nearest  approach  to  the  practical  enforcement  of  this  doctrine,  to  be  found 
in  the  American  decisions.  In  those  cases  the  sheriff  was  held  to  be  liable, 
either  in  replevin  or  trespass,  to  the  owner  of  goods,  for  seizing  them  as  the 
property  of  the  defendant  in  the  execution,  by  whom  they  had  been  pur- 
chased, under  circumstances  of  fraudulent  misrepresentation.  As  a  sale 
vitiated  by  fraud,  whether  on  the  part  of  the  buyer  or  seller,  would  seem  to 
be  merely  voidable,  and  not  void  ab  initio,  Hazard  v.  Irwin,  102,  Rowley  v. 
Bigelbw,  12  Pick.  -307,  it  appears,  that  in  these  cases  the  vendor  was 
allowed,  by  disaffirming  the  contract  and  demanding  back  the  goods,  to 
impose  upon  the  sheriff  a  liability  for  an  act  as  tortious,  which  would  other- 
wise have  been  valid,  as  against  all  the  world. 

In  the  recent  case  of  Tharpe  v.  Siallwood,  5  M.  &  G.  760,  it  was  declared 
that  the  cases  of  Garland  v.  Carlisle,  and  Balme  v.  Hutton,  supra,  429,  had 
definitely  settled  the  law,  that  the  assignees  cannot  treat  the  sheriff  as  a 
trespasser  by  relation,  for  taking  the  goods  of  the  bankrupt  before  the  fiat, 
although,  under  such  circumstances,  they  may  render  him  liable,  in  an 
action  of  trover.  But  it  was  held  that  the  principle  of  those  decisions  only 
applied  where  the  act  complained  of  was  rightful  at  the  time,  and  became 
wrongful  afterwards,  as  in  the  case  of  a  seisure  of  goods  by  authority  of  law, 
of  which  the  title  is  in  the  defendant  in  the  execution,  at  the  time  when 
they  are  taken,  although  subsequently  vested  by  relation  in  other  parties. 
It  was,  therefore,  determined  that  an  administrator  might  maintain  trespass 


ROBINSON     V.     RALE  Y.  431 

for  the  asportation  by  the  defendant,  of  the  goods  of  the  intestate,  after  his 
death  and  before  administration  granted,  since  there  the  act  was  wrongful 
from  the  beginning,  and  the  relation  only  extended  to  vest  the  right  of 
action  in  the  plaintiff.  In  this  respect,  the  case  before  the  court  was  said 
to  be  analogous  to  the  well  established  doctrine  of  the  common  law,  that  a 
disseisee  who  revests  his  estate  by  re-entry,  may  maintain  trespass  for  all 
injuries  committed  while  he  has  been  out  of  possession. 

H. 


*ROBINSON   V.   RALEY.  [*24i] 

EASTER— 30  G.  2,  B.  R. 
[reported  1  srRR.  310.] 

Several  matters  may  be  put  in  issue  by  a  sing'le  traverse,  provided  they  constitute  but  one 

defence. 
The  traverse  of  a  material  allegation  is  propehly  concluded  to  the  country. 
The  defendant  will  not  be  allowed  to  withdraw  liis  demurrer  to  tlic  replication  and  amend, 

after  the  court  have  given  judgment  against  him  on  the  demurrer,  and  after  other  issues 

have  been  tried,  and  contingent  damages  assessed  on  them. 

This  was  an  action  of  trespass.  The  declaration  contained  a  great  num- 
ber of  counts  :  amongst  the  rest,  one  in  trespass  for  breaking  and  entering 
the  plaintiff's  close;  and  depasturing  it  with,  &c.  ;  and  for  breaking  and 
entering  his  free-warren  ;  a  2nd  count,  to  the  like  effect ;  (but  in  different 
years  ;)  so  a  3rd,  4th,  5th,  and  6lh  ;  and  six  more,  for  breaking  and  enter- 
ing another  close  called  Sands's  Piece  ;  a  13th  for  taking  and  carrying 
away  the  plaintifl''s  trees  ;  and  a  fourteenth  for  taking  and  carrying  away 
his  goods  and  chattels. 

The  defendant  had  leave  to  plead  several  pleas  ;  and  accordingly  he 
pleaded  :  1st,  the  general  issue,  to  the  whole.  2nd  plea,  (by  leave,  ut  supra.) 
That  as  to  the  close  called  the  rabbet-walks,  "  that  it  is  one  rood  of  land, 
parcel  of  a  common-field  ;  and  that  Mr.  Finch,  in  right  of  his  prebendal 
estate,  and  all,  &c.,  have  right  of  common,  &c.,  in  certain  fields,  called  Mid- 
dle Fields,  whereof  the  rabbet-Avalks  are  parcel :"  which  right  he  derives 
to  himself;  and  so  justifies  under  it.  The  like  plea  to  the  other  five  next 
counts.  He  pleads,  as  to  the  six  counts  relating  to  Sands's  Piece,  the  gene- 
ral *issue.  To  the  13th  count,  he  pleads  tenancy  of  another  close,  r^o^o-i 
under  the  plaintiff;  and  justifies  under  a  license,  and  avers  that  it  L  -^ 
was  used  for  gates,  &c.     Another  plea  was  a  right  of  common,  «fcc.  «fec. 

The  plaintiff,  in  his  replication  to  the  2nd  plea  to  the  1st  count,  traverses 
the  right  of  common  :  and  in  his  replication  to  the  like  pleas,  as  to  the 
other  five  counts,  traverses  the  rabbet-walks  being  parcel  of  the  Middle 
Fields.    In  his  replication  to  the  last  mentioned  plea,  he  traverses  the  right 


432  smith's   leading   cases. 

of  common.  All  these  issues  were  found  for  the  defendant.  To  the  plea 
to  the  5ih  count,  the  replication  traverses,  «'  that  the  cattle  were  the  defend- 
ant's own  cattle ;  and  that  they  were  levant  et  couchant  upon  the  premises, 
and  commonable  cattle."  To  this  there  is  a  special  demurrer  for  cause, 
(viz.,  "that  the  replication  is  multifarious,  and  that  several  matters,  specify- 
ing them,«re  put  in  issue  ;  where  only  one  single  matter  ought  to  be  so  ;") 
and  joinder  in  demurrer.  To  the  plea  to  the  13th  count,  the  replication 
traverses  the  license;  (after  protesting  "that  the  tree  was  not  used  for 
gates,  &c.,  as  is  alleged  by  the  defendant's  plea.")  And  to  this  replication 
also,  the  defendant  demurs  specially,  and  shows  for  cause,  "  that  it  concludes 
to  the  country,  whereas  it  ought  to  conclude  with  an  averment." 

Serjeant  Poole,  for  the  defendant,  complained  of  the  hardship  the  plaintiff 
put  upon  the  defendant  in  the  5th  count,  hy  enforcing  the  defendant  to 
prove  the  cattle  to  be  his  own  cattle,  and  commonable  cattle,  and  levant  and 
couchant  upon  the  land  ;  which  hardship  had  obliged  him  to  demur. 

He  argued,  that  some  one  fact  only  ought  to  be  put  in  issue  ;  not  several. 

He  cited  Co.  Litt.  126,  a.  It  must  be  one  single  certain  material />oinf. 
And  so  also  8  Rep.  67,  b.  Crogate's  case,  the  last  resolution,  lays  down 
the  rule  accordingly,  "that  an  issue  ought  to  be  full  and  single." 

Now  here  are  three  distinct  facts  put  in  issue,  by  this  replication  :  any 
one  of  which  was  sufficient. 

For  if  the  cattle  were  not  his  own,  or  were  levant  and  couchant,  they 
were  not  commonable  cattle.     The  plaintiff  might  as  well  have  put  twenty 
,  facts  in  issue. 

This  therefore,  is,  at  least,  a  fault  in  form  ;  and  we  have  demurred  spe- 
-,  cially,  and  shown  this  for  cause  ;  that  the  ^replication  is  multifa- 
L         -^  rious,  and  that  several  matters  are  put  in  issue,  (specifying  them) ; 
whereas  only  one  single  matter  ought  to  be  so." 

As  to  the  license  : — ^The  replication,  protesting  that  the  tree  was  not  used 
for  gates,  &c,,  traverses  the  license.  To  this  replication,  we  have  demurred, 
out  of  necessity  ;  for  though  we  really  have  a  license,  yet  the  person  who 
gave  it  to  us  (the  plaintiff's  steward)  has  denied  it ;  and,  we  apprehend, 
would  do  so  again,  on  oath.  Therefore,  we  have  demurred  specially,  and 
shown  for  cause  "That  the  replication  concludes  to  the  country,  whereas  it 
ought  to  conclude  with  an  averment." 

Now,  they  ought  to  have  traversed  the  license  specially,  and  to  have  con- 
cluded with  an  averment.  Crogate's  case,  3rd  resolution,  fo.  67,  a.  b.,  shows 
that  this  license  ought  to  have  been  specially  traversed,  and  concluded  with 
an  averment.  And  Rast.  660,  b.  bis.  661.  630.  651,  and  1  Brown,  353,  and 
Thompson's  Entr.  365,  and  many  other  precedents  are  so. 

Indeed,  where  the  whole  of  the  plea  is  traversed,  the  conclusion  may  be 
to  the  country.  But  this  is  not  a  traverse  of  the  whole.  So  that  this  is  a 
departure,  by  Mr.  Robinson,  from  the  common  form  of  pleading. 

Mr.  Yates,  contra,  for  the  plaintiff. 

One  part  of  the  duplicity,  viz.,  the  cattle  not  being  commonable,  is  not 
pointed  out  bythe  special  demurrer. 

However,  this  traverse  is  not  double  ;  though  I  agree  that  it  numerically 
contains  several  matters  ;  all  which  together  make  up  the  defendant's  plea, 
and  make  one  entire  defence.  And  it  is  within  the  reason  of  Crogate's 
case,  8  Co.  67. 


ROBINSON    V.     RALEY.  433 

Whereas  duplicity  is,  where  distinct  matters,  not  being  part  of  one 
entire  defence,  are  put  in  issue.  For  there  are  cases  where  several  mat- 
ters may  be  put  in  one  traverse ;  as,  for  instance,  a  custom  consisting  of 
several  parts. 

Now,  all  these  parts  here  traversed  make  one  entire  defence.  For  the 
cattle  must  be  commonable,  levant  and  couchant,  and  his  own  ;  or  else 
it  is  no  sufficient  defence.  To  prove  which  he  cited  1  Rol.  Abr.  398. 
Letter  G.  pi.  2,  3.  Letters  H.  &  L  throughout.  1  Saund.  227,  the  case  of 
Stennell  v.  Hogg :  and  2  Show.  328,  the  case  of  Manneron  v.  Trevilian, 
in  point. 

*As  to  the  license,  the  cause  of  demurrer  shown  is,  "that  he  r.^^..-, 
ought  to  have  maintained  his  declaration  ;  and  that  he  ought  to  have  L  J 
concluded  with  a  traverse  and  averment." 

But  precedents  are  both  ways.  2  Brown's  Entr.  283,  concludes  as  the 
present  does.  And  whoever  has  seen  the  whole  of  this  record  will  not 
think  that  either  of  the  parties  has  concluded  too  hastily.  He  cited  the 
case  of  Clark  v.  Glass,  Tr.  28,  29  G.  2,  B.  R.,  to  prove  that  where  the 
whole  contents  of  the  plea  are 'denied,  the  conclusion  must  be  to  the 
country  ;  but  where  only  a  particular  fact  is  denied,  the  conclusion  must 
be  with  an  averment.  He  also  cited  2  Lulw.  1399.  1401,  the  case  of 
Hustler  v.  Raines. 

Sergeant  Poole,  in  reply. 

1st.  As  to  the  two  matters  making  but  one  entire  defence  : — yet  being 
variety  of  facts,  they  ought  not  both  to  be  put  in  issue.  Crogate's  case,  8 
Co.  67. 

And  the  common  method  is,  to  traverse,  «  that  the  said  cattle  Avere  levant 
and  couchant." 

As  to  the  case  of  Manneton  v.  Trevilian,  I  agree  that  the  cattle  ought  to 
be  levant  and  couchant.  My  demurrer  here  is  in  point  of  form  ;  and  is 
special. 

2ndly.  I  do  not  know  but  the  party  may  go  to  issue  in  some  cases  ;  but 
I  say  this  is  not  the  common  form. 

The  case  of  Hustler  v.  Raines,  2  Lutw.  1399.  J  401,  proves  nothing 
against  me. 

Lord  Mansfield  held  both  these  demurrers  to  be  frivolous. 

The  substantial  rules  of  pleading  are  founded  in  strong  sense,  and  in  the 
soundest  and  closest  logic  ;  and  so  appear,  when  well  understood  and 
explained  ;  though,  by  being  misunderstood  and  misappled,  they  are  often 
made  use  of  as  instruments  of  chicane. 

As  to  the  present  case.  It  is  true,  you  must  take  issue  upon  a  single 
point ;  but  it  is  not  necessary  that  this  single  point  should  consist  only  of  a 
single  foct.  Here,  the  point  is,  the  cattle  being  entitled  to  common;  this 
is  the  single  point  of  the  defence.  But,  in  fact,  they  must  be  both  his  own 
cattle,  and  also  levant  and  couchant ;  which  are  two  different  essential  cir- 
cumstances of  their  being  entitled  to  common  ;  and  both  of  them  absolutely 
requisite. 

So,  as  to  the  license.  The  license  is  the  point  in  question.  And  this 
point  in  question,  "whether  the  license  was  given  *or  not,"  is  put  ^^^^t■■^ 
in  issue  ;  the  whole  turns  upon  this  particular  proposition.  Indeed,  L         -J 

Vol.  I.— 28 


434  smith's  leading  cases. 

it  may  be  a  different  case,  where  the  whole  of  the  plea  is  not  denied  ;  but 
only  some  parts  of  it.     But  that  is  not  this  case. 

Mr.  Yates  has  made  right  and  reasonable  and  intelligible  distinctions  : 
and  he  has  cited  an  express  authority. 

Mr.  Justice  Denison  concurred. 

1st.  As  to  Crogate's  case.  The  replication  "  de  injuria  sua  propria 
absq;  tali  causa,"  will  do,  in  all  cases  where  matter  of  tiile,  and  other 
things  of  that  kind,  are  not  included  in  the  "absq;  tali  causa;"  and  if  you 
admit  them,  you  may  then  plead  "  De  injuria  sua  propria  absque  residue 
causae;  traversing  that  residue.  But  the  rule  in  Crogate's  case  does  not 
affect  this  case.  For  here  the  question  is  one  single  proposition,  viz.,  tht^ 
measure  of  the  common  ;  and  the  measure  of  the  common  is  the  levancy 
and  couchancy  jointly  with  the  property. 

Skinner,  137,  is  a  more  sensible  report  of  the  case  of  Molliion  v.  Trevi- 
lian,  than  2  Show.  328.  And  there  the  levancy  and  couchancy,  together 
with  the  property,  were  esteemed  to  be  the  measure  of  the  common  ;  and 
not  the  levancy  and  couchancy  only. 

So  that  nothing  more  is  here  traversed  than  the  measure  of  the  common. 
The  case  is  in  point. 

Besides,  I  think  it  is  within  Crogate's  case. 

As  to  the  license.  It  is  right,  and  avoids  the  prolixity  of  pleading.  The 
old  way,  indeed,  was  otherwise  ;  but  it  is  altered  of  late.     2  T.  R.  489. 

And  he  cited  a  case  (of  an  alternate  way  of  traversing  a  corrupt  agree- 
ment,) which  was  in  M.  5.  G.  1,  B.  R.  Fen  v.  Alston,  where  it  was 
holden,  "  that  the  plaintiff  has  a  liberty  either  to  reply  that  the  bond  was 
given  upon  another  account,"  and  to  traverse  the  corrupt  agreement  with 
an  absque  hoc  ;  or  to  deny  the  corrupt  agreement  directly,  and  conclude 
to  the  country.  And  the  case  of  Baynham  v.  Matthews,  2  Strange, 
71,  goes  upon  the  very  same  foundation  ;  and  mentions  the  same  alter- 
native. 

Mr.  Justice  Foster.    I  am  of  the  same  opinion. 

Mr.  Norton,  who  was  also  of  counsel  for  the  defendant,  desired  the  court 
not  to  give  judgment  yet;  but  to  give  them  an  opportunity  to  move  for 
leave  to  withdraw  their  demurrers,  and  amend  ;  which  the  court  agreed 
to.  And  in  a  few  days  afterwards,  Mr.  Norton  moved  for  leave  to 
-.  withdraw  *the  two  demurrers,  and  plead  to  issue  ;  (upon  pay- 
L         -^  ment  of  costs;)  and  a  rule  was  thereupon  granted  to  show  cause. 

And  now  Mr.  Yates  showed  cause,  for  the  plaintiff,  against  the  defendant's 
being  at  liberty  to  withdraw  the  two  demurrers,  and  plead  to  issue.  And 
he  cited  6  Mod.  102,  the  case  of  Cross  v.  Bilson  ;  6  Mod.  1,  the  case 
of  Stable  v.  Haydon  ;  1  Lord  Raym.  668,  the  case  of  Fox  v.  Wilbraham  : 
and  2  Strange,  1002,  the  Bank  of  England  v.  Morrice. 

Serjeant  Poole  and  Mr.  Norton,  contra,  for  the  defendant. 

The  merits  have  not  been  tried  upon  these  demurrers.  We  move  this  a* 
common  law  ;  not  under  any  statute;  and  the  court  are  not  bound  down  by 
any  certain  rules.  And  they  cited  2  Saund.  402  ;  Rex  v.  Ellames,  2  Strange. 
976  ;  Duchess  of  Marlborough  v.  Widmore,  Hil.  4  Geo.  2,  B.  R. ;  the  case 
of  Cope  V.  Marshall,  T.  R.  28  G.  2,  B.  R. ;  vide  ante,  259,  S.  C. 

The  case  of  Giddins  v.  Giddins,  Tr.  29,  30  G.  2,  B.  R.,  was  even  after 
the  court  had  given  their  opinion. 


ROBINSON    V.     RALEY.  435 

And  here  is  a  declaration  of  twenty  counts,  manifestly  intended  to  catch 
the  defendant,  and  to  save  costs. 

If  our  motion  is  granted,  the  contingent  damages  assessed  will  be  out  of 
the  case,  and  will  be  as  none  at  all. 

Lord  Mansfield.  It  is  admitted  to  have  been  done,  after  a  demurrer 
and  argument ;  but  this  is  after  a  trial ;  and  without  any  favourable  circum- 
stances. ,      .  1      •   f 

Now,  as  no  case  of  such  an  amendment  after  a  trial  is  cited,  I  take  it  for 

granted  that  none  exists. 

These  are  frivolous  demurrers ;  and  the  only  view  of  this  motion  is  to 
get  rid  of  the  costs.  But  the  plaintiff  would  have  had  his  costs,  if  the  defen- 
dant had  done  right  at  first,  and  joined  issue  upon  these  facts,  if  they  had 
been  found  against  him. 

So  that  here  is  neither  precedent  nor  reason  for  allowing  this  motion. 

Mr.  Justice  Denison  concurred. 

Where  the  demurrer  is  first  argued,  before  any  trial  of  the  issues,  the 
court  will  give  leave  to  amend  ;  as  in  the  case  of  Giddins  v.  Giddins.  But 
this  is  an  attempt  to  amend  an  issue  at  law,  after  a  verdict  has  been  found 
on  the  issues  upon  facts,  and  contingent  damages  found  upon  the  demur- 
rers ;  of  which  there  never  was  an  instance.  And  we  do  not  know  where 
it  would  end  ;  nor  do  I  well  know  how  the  cause  could  be  again  carried 
down  to  trial. 

*If  this  had  at  first  gone  down  to  issue,  and  had  been  found  r*247l 
against  the  defendant,  it  would  have  carried  costs.  ■- 

The  court  cannot  help  seeing  that  this  is  upon  record  ;  here  are  verdicts 
and  contingent  damages  found.  Therefore,  we  cannot  help  this  ;  I  wish  we 
could;  because  the  merits  seem  to  be  with  the  defendant. 

The  cases  of  amendment  cited  are  where  the  whole  is  supposed  to 
be  in  paper  ;  or  else  the  court  could  not  have  done  it.  We  have  no  autho- 
rity to  do  this,  after  it  is  plainly  upon  record. 

Mr.  Justice  Foster  concurred. 

Per  cur'  unanimously  judgment  for  the  plaintiff 
upon  the  demurrer. 


The  decision  of  the  court  upon  the  ding-,  the  petitioning  creditor's  debt, 
former  of  the  two  points  involved  in  this  and  the  bankruptcy.  For  the  court  held 
demurrer  was  approved  of  in  O'Brien  v.  it  good,  for  "the  three  facts  connected 
Saxon,  2  B.  &  C.  908.  The  declaration  together  constitute  but  one  entire  pro- 
there  was  for  maliciously,  and  without  position,  and,  therefore,  the  replication 
reasonable  or  probable  cause,  suing  out  is  good."  So  it  was  held  in  Webb  v. 
a  commission  of  bankruptcy  against  the  Weatherby,  1  Bing.  N.  C.  502,  that 
plaintiff:  Plea,  that  the  plaintiff,  before  payment  in  satisfaction  and  acceptance 
the  suing  out  of  the  commission,  being  in  satisfaction  may  both  be  put  in  issue 
a  trader,  and  indebted  to  the  defendant  by  the  same  replication.  But  though 
in  lOOL,  became  bankrupt,  whereupon  several  facts  may  often  be  traversed 
the  defendant  sued  out  the  commission,  cumulatively,  where  they  constitute 
Replication,  De  injuria.  The  defendant  together  one  ground  of  action  or  de- 
demurred,  and  assigned  for  cause  that  fence,  yet  care  must  be  taken  to  tra- 
the  plaintiff  had  attempted  to  put  in  verse  them  not  copulatively,  but  in  tlie 
issue  three  distinct  things,  viz.,  the  tra-  disjunctive,  whenever  proof  of  all* of 


436 


smith's  leading  cases. 


them  is  not  aLsolutely  incumbent  on  the 
opposite  party.  Coram  v.  Sweeting-,  2 
Wm.  Saund.  207;  Moore  v.  Boulcott, 
1  Bing-.  N.  C.  323 ;  Stubbs  v.  Lainson, 
5  Dowl.  162.  And  the  rule  tliat  several 
facts  constituting  one  single  point  may 
be  traversed  cumulatively,  must  be  tak- 
en with  considerable  qualification  ;  for 
every  plea  or  replication,  which  is  not 
bad  for  duplicity,  consists  (as  Mr.  J. 
Patteson  remarks  in  Selby  v.  Bardons, 
3  B.  &  Ad.  9,)  of  a  single  point,  yet 
there  are  cases  where  a  traverse  of  seve- 
eral  matters  constituting'  one  plea  or 
one  replication  has  been  disallowed. 
See  Faulkner  v.  Chevell,  5  Ad.  &  EL 
213;  White  v.  Reeves,  2  Moore,  23; 
and  Smith  v.  Dixon,  7  A.  &,  E.  21.  In- 
deed tlie  cases  regarding  duplicity  seem 
to  rest  at  present  on  no  well-settled 
principle.  See  Lord  Tenterden's  ob- 
servations in  Selby  v.  Bardons,  3  B.  & 
Ad.  1.  In  Hulme  v.  Mugglestone,  Mich. 
T.  1837,  reported  4  MeTe.  &  W.  30 ;  6 
Dowl.  112,  the  question  what  consti- 
sutes  duplicity  was  brought  before  the 
court  by  demurrer  to  a  replication  tra- 
versing both  sides  of  a  plea  of  mutual 
credits.  The  declaration  was  by  as- 
signees of  a  bankrupt  for  money  had 
and  received  to  their  use,  the  defendant 
pleaded  among-  other  things  as  to  191. 
19s.  parcel,  &c.  that  the  bankrupt  was 
before  bankr^iptcy  indebted  to  the  defen- 
dant in  2UZ.  for  goods  sold,  and  that  be- 
fore bankruptcy  he  lent  the  defandant  a 
cheque  for  97/.  10s.  on  the  Chesterfield 
bank,  which  cheque  tlie  defendant  pro- 
cured to  be  cashed  after  the  bankruptcy, 
and  the  amount  of  which  was  the  same 
money  for  which  the  plaintiffs  had  de- 
clared :  and  as  to  191.  19s.  thereof 
defendant  claimed  to  set  off"  under  st.  6 
G.  4,  c.  16,  s.  50.  Replication  that  the 
bankrupt  was  not  indebted  to  the  defen- 
dant, 7ior  did  the  bankrupt  give  credit 
to  the  defendant  in  manner  and  form, 
&c.,  the  court  after  argument  advised 
the  plaintiflfto  amend,  which  he  accord- 
ingly did,  on  payment  of  costs.  See 
further  ;  Smith  v.  Dixon,  6  Dowl.  47  ; 
and  Stevens  v.  Underwood,  4  Bing.  N. 
C.  655.  The  power  of  putting  the 
v.'hole  of  a  defence  in  issue  must  of 
course  be  taken  subject  to  the  qualifica- 
tions established  Ijy  Crogate's  case, 
which  see  with  the  notes,  ante,  p.  53. 
"Where  a  traverse  is  bad  for  duplicity, 
it  appears  to  make  no  difference  though 
one  part  of  it  may  be  immaterial.  Ste- 
vens V,  Underwood,  4  Bing.  N.  C.  655. 


Regil  V.  Green,  1  Meeson  &  Welsb. 
328. 

As  to  the  second  cause  of  demurrer, 
it  is  now  settled  that,  wherever  a  subse- 
quent pleading  traverses  a  material  part 
of  the  former  one  in  such  a  manner  that 
the  adversary,  if  he  were  obliged  to 
answer  it  at  length,  could  do  nothing 
but  repeat  the  allegation  traversed, 
there  a  conclusion  to  the  couuiry  is  pro- 
per, and  that  whether  the  traverse  be 
or  not  prefaced  by  an  inducement.  Reg. 
Gen.  PI.  Hil.  1834,  PI.  13.  Seel  Wms. 
Saund.  103,  a.  note  3. 

With  respect  to  the  refusal  of  the 
application  to  amend,  the  courts  always 
refuse  permission  to  do  so  under  such 
circumstances  as  those  in  the  principal 
case ;  and  even  in  cases  where  the  ob- 
jection is  not  so  strong,  leave  to  amend 
is  by  no  means  granted  as  a  matter  of 
course.  See  Kinder  v.  Paris,  2  H.  Bl. 
561;  Rex  v.  Holland,  4  T.  R.  459; 
Evans  v.  Stevens,  Ibid.  228 ;  Wood  v. 
Grimwood,  10  B.  it  C.  639 ;  Saxby  v. 
Kirctts,  Say,  117;  Noble  v.  King,  1  H. 
Bl.  37 ;  Jordan  v.  Twells,  Hardw.  171. 
Indeed,  the  court  is  very  reluctant  to 
amend  after  its  opinion  has  been  deliv- 
ered upon  argument:  for,  if  it  were  to 
become  usual  so  to  do,  great  encourage- 
ment would  be  aflbrded  to  frivolous  and 
experimental  demurrers,  since  parties 
would  take  the  chance  of  succeeding 
upon  argument  of  any  legal  objections 
which  might  occur,  knowing  that,  in 
case  of  failure,  they  woujd  be  allowed 
to  amend,  and  go  to  trial  on  the  facts. 
See  Say,  R.,  116-17,  and  Bramah  v.  Ro- 
berts, 1  Bing.  N.  C.  483,  where  Tindal, 
C.  J.,  in  refusing  such  an  application, 
said,  "  The  law  of  Westminster  r^odQi 
*Hall,  I  believe,  ever  since  it  '-  -' 
stood  in  the  place  in  which  it  now 
stands,  has  been  that,  if  a  party  thinks 
proper  to  rest  his  defence  on  his  case 
upon  a  point  of  law,  raised  on  the  re- 
cord, he  must  either  stand  or  fall  upon 
the  point  so  raised.  I  do  not  mean  to 
say  that  a  case  may  not  arise,  where,  a 
point  being  so  taken,  a  party  may,  even 
after  judgment,  apply  to  the  court  to 
amend  ;  but,  according  to  the  advice  of 
Lord  Coke,  Butler  and  Baker's  case,  3 
Rep.  25,  you  ought  never  to  rely  on  a 
point  of  law,  when  the  facts  are  in  your 
favour.  Although  there  are  excepted 
cases,  which  will  always  be  attended 
to,  I  should  expect  after  an  argument 
has  been  heard,  and  judgment  given  for 
the  plaintiff,  at  least  a  distinct  affidavit 


ROBINSON     V.    RALET. 


437 


of  merits  from  those  who  make  the  ap- 
plication. 

But  after  demurrer  and  joinder,  and 
before  argument,  leave  to  amend  is  now 
a  matter  of  course ;  for,  indeed  the  rea- 
son that  the  statute  of  Elizabeth  re- 
quired objections  of  form  to  be  shown 
specially  for  cause  of  demurrer,  was  to 
give  the  parties  an  opportunity  of  amend- 
ing them.  See  Hatton  v.  Walker,  2  Str. 
816 ;  and  amendments  are  sometimes 
allowed  after  argument.  See  Ayres  v. 
Wilson,  1  Dougl.  335;  Waters  v.  Og- 
den,  Id.  452;  Alder  v.  Chip,  2  Burr. 
756 ;  Cholmley  v.  Paxton,  3  Bing.  1. 
And  so  long  ago  as  Michaelmas,  2  Anne, 
the  rule  which  has  ever  since  prevailed 
was  laid  down  in  the  following  terms, 
viz. :  "Since  pleading  in  paper  is  now 
introduced  instead  of  the  old  way  of 
pleading,  ore  tenus,  at  the  bar,  it  is  but 
reasonable  after  a  plea  to  issue  or  de- 


Lord  Holt;  Anon.  6  Mod.  130;  where 
liis  lordship,  refusing  to  amend  a  record, 
said,  "  He  considered  there  wanted  a 
clock-house  over  against  the  Hall-gale." 

Several  statutes,  however,  were  soon 
passed,  authorising  amendments  in  the 
record  itself  x-Vnd  others  called  statutes 
of  Jeofails,  curing  mistakes  of  form  with- 
out any  actual  alteration.  See  a  good 
account  of  these  acts  B.  N.  P.  321,  a. ; 
and  see  Siboni  v.  Kirkman,  3  Mee.  & 
Welsh.  46,  where  the  omission  of  a 
similiter  was  amended  even  after  Writ 
of  Error. 

In  construing  the  statutes  of  amend- 
ment, there  was  one  general  rule,  viz., 
that,  in  order  to  amend  under  them, 
there  must  be  something  to  amend  by. 
Thus  the  v/rit  or  bill  was  amendable  by 
the  prascipe  ;  the  pleadings  by  the  draft 
under  counsel's  hand  ;  the  nisi  prius  roll 
by  the  plea  roll;  the  verdict,  if  general, 


murrer  joined,   that   upon   payment  of    by  the  memory  or  notes  of  the  judge,  or 


costs,  the  parties  should  be  at  liberty  to 
amend  their  plea,  or  to  waive  their  plea 
of  demurrrer,  while  all  the  proceedings 
are  on  paper."  Anon.  2  Salk.  520.  For 
in  ancient  times  the  counsel,  as  is  well 
known,  used  to  deliver  the  declaration, 
plea,  &,c.,  ore  tenus,  at  the  bar,  up  to 
demurrer,  or  issue  in  fact,  and,  in  case 
of  any  mistake,  used  to  correct  them- 
selves and  amend  it.  Now  -therefore 
that  paper  pleadings  are  substituted  for 
these  oral  ones,  the  same  species  of 
amendments  are  permitted,  not  in  con- 
sequence of  any  statute,  but  merely  in 
continuace  of  the  old  common  law  prac- 
tice. 

But  when  the  proceedings  have  been 
entered  upon  record,  the  common  law 
power  of  amendment  ceases ;  for  the 
judges  at  common  law  were  prohibited 
from  allowing  alterations  to  be  made  in 
any  record,  Britton,  proem,  2,  3;  and 
indeed  several  of  them  were,  during  the 
reign  of  Edward  the  First,  severely 
punished  for  so  doing :  among  whom 
the  Lord  Chief  Justice  Ingham,  or 
Hengham,  was  fined,  according  to  some, 
7000,  to  others,  800,  marks ;  clause  6, 
Edw.  1,  m.  6,  Dugd.  Chron.  Ser.  26. 
Year  Book,  M.  2  Ric.  3.  10;  4  Inst. 
255;  1  H.  P.  C.  646;  which  sum,  as 
we  are  told  by  Justice  Soulhcote,  3  Inst. 
72  ;  4  Inst.  255,  was  expended  in  build- 
ing a  clock-house  at  Westminster,  with 
a  clock  to  be  heard  in  the  Hall — a  cir- 
cumstance which,  as  is  observed  by  Mr 


notes  of  the  associate  or  clerk  of  assize, 
if  special,  by  the  notes  of  counsel  or  by 
affidavit ;  the  writ  of  execution  by  the 
judgment,  or  by  the  award  of  it  upon 
the    roll,   or   by   former   process.     See 
Tidd's  Prac.  9  Ed.  p.  712;  B.  N.  P.  321. 
a.  et  seq.  However,  several  cases  occur 
in  the  books  in  which  records  have  been 
amended,  although  it  would  appear  that 
there  was  nothing  to  amend  by  ;    for  in- 
stance, Halhead  v.  Abrahams,  3  Taunt. 
81 ;    where  in  an  action  on  a  bond,  the 
plaintiff   *was    nonsuited    for    a  r%.2iq-| 
variance  between  the  bond  and  '-         ^ 
the  statement  of  it  in  the  declaration ; 
and  the  court  set  aside  the  nonsuit,  and 
amended  the  declaration.     See  Skutt  v. 
Woodford,    1    H.    Bl.  238;  and  Tidd's 
Prac.  697,  8.  708,  9 ;  and  the  late  case 
of  Siboni  V.  Kirkman,  3  Mee.  &  Welsh. 
46,  seems  to  prove  that  where  the  error 
is  an  evident  misprision  of  the  clerk  in 
omitting  a  well-known  and  established 
form   of  words,  it   is  not  necessary  to 
produce  anything  to  amend  by,  in  order 
to  induce  the  court  to  supply  the  defi- 
ciency.    The  subject  is  not  now,  how- 
ever, of  so  much  practical  importance  aa 
formerly ;   for  by  Reg.  G.  Hil.  1834,  pi. 
15,  it  is  directed  that  "the  entry  of  pro- 
ceedings on  the  record  for  trial,  or  on 
the  judgment  roll,  according  to  the  na- 
ture of  the  case,  shall  be  taken  to  be,, 
and  shall  be,  in  fact,  the  first  entry  of 
the  proceedings  in  the  cause,  or  of  any 
part  thereof  upon  record.     So  tliat  now 


J.  Coleridge,  in  his  admirable  edition  of    the  proceedings  remain   in  paper  until 
the  Commentaries,  explains  a  dictum  of    the  making  up  of  the  judgment  roll,  in 


438  smith's  leading   cases. 

all  cases,  except  those  in  which  there  is  of  which  will  be  found  in  the  notes  to 

a  trial ;   and,  with  respect  to   the  nisi  Bristow  v.  Wright,  post, 

prius  record,  it  appears  clear  that,  as  the  The  common  law  rule,  that  a  record 

paper  pleading-s  and  issue  are  now  sub-  was  not  amendable,  must  be  taken  to 

stituted  for  the  plea  and  issue  rolls,  it  mean   that  it  was  not  amendable  after 

may  be  amended  by  the  former,  as  it  the  term.     See  R.  v.  Carlisle,  2  B.  &  A. 

once  might  have  been    by   the  latter;  971;  for  during  the  term  the  record  is 

besides  which,    very   extensive  powers  said  to  be  in  fieri ;  and  it  is  in  the  breast 

of  amending  it  at  the  trial  are  given  by  of  the  court  to  mould  it  as  the  justice  of 

statutes  1  G.  4,  c.  55;  9  Geo.  4,  c.  15;  the  case  requires, 
and  '6  &  4.  W.  4,  c.  42 ;  the  provisions 


No  question  has  been  more  frequently  determined  in  the  courts  of  justice 
in  this  country,  than  that  duplicity  will  vitiate  a  plea,  and  on  the  other 
hand,  that  the  averment  of  several  facts,  going  to  make  up  one  point,  will 
not  render  a  plea  double.  Thus,  when  the  plaintiff  declared  on  a  covenant 
by  the  defendant,  to  make  a  deed  of  conveyance,  when  thereto  requested, 
and  alleged  a  request  and  refusal,  a  plea  traversing  both  request  and  refusal, 
was  held  bad  for  duplicity,  as  containing  two  distinct  points,  either  of  which 
by  itself,  would  have  constituted  a  sufficient  defence.  Conelly  v.  Peirce,  7 
Wend.  130. 

In  like  manner,  a  replication,  in  confession  and  avoidance,  which,  as  con- 
taining no  traverse,  and  merely  setting  forth  new  matter,  comes  under  the 
same  law  as  an  affirmative  plea,  was,  in  Cooper  v.  Heermance,  3  Johns. 
315,  held  bad,  where  it  contained,  as  an  answer  to  a  plea  of  discharge  under 
an  insoh^ent  act,  averments  of  three  several  acts  of  fraud,  committed  in 
obtaining  such  discharge  :  and  in  Craig  v.  Brown,  1  Peters,  C.  C.  R.  443, 
a  replication  to  plea  of  the  statute  of  limitations,  that  the  plaintiff  was 
beyond  sea,  and  that  the  account  was  between  merchant  and  merchant,  was 
also  determined  to  be  double.  The  same  general  principle  was  also  applied 
under  various  circumstances,  in  the  cases  of  The  U.  S.  v.  Gurney,  1  W.  C. 
C.  R.  446 ;  Kennedy  v.  Strong,  10  Johnson,  289,  and  Nichols  v.  Arnold,  8 
Pick.  172. 

It  is  obvious  that  the  introduction  into  a  plea  of  matter  merely  of  induce- 
ment or  surplusage,  cannot  render  it  double  ;  Lord  v.  Tyler,  4  Pick.  156  ; 
Porter  v.  Brackenridge,  2  Blackford,  385  ;  Stewardson  v.  White,  3  Har. 
&  M'Henry,  455  ;  and  in  these  cases  the  court  appear  to  have  entertained 
the  opinion  that  duplicity  could  not  exist,  unless  the  matters  contained  in  the 
pleading  were  not  only  set  forth  as  several  and  distinct  defences,  but  were 
actually  valid  as  such,  so  that  either  would  be  a  complete  bar  to  the  action. 
Such  also  appears  to  have  been  the  view  taken  bj^  Wilde,  J.,  in  the  case 
of  Dunning  v.  Owen,  14  Mass.  157.  If  such  be  the  rule  of  law,  it  must 
expose  the  plaintiff  to  the  hardship  of  determining  as  to  the  validity  of  two 
distinct  points,  which  may  be  so  pleaded  that  if  issue  be  joined  on  one, 
and  found  in  his  favour,  it  will  be  contended  that  the  other  is  material; 
while  on  a  demurrer,  an  opposite  language  may  be  held,  and  the  defendant 
may  argue,  that  he  has  in  reality  set  forth  but  one  valid  defence.  On  this 
ground  it  was  held  by  Lord  Denman,  in  Wright  v.  Watts,  3  Q,.  B.,  89,  that 
it  is  not  essential  that  the  matter  in  a  plea  should  form  a  good  defence,  in 


ROBINSON     V.     RALEY.  439 

order  to  render  the  plea  double,  as  containing  another  defence,  but  that  it  is 
enough  if  the  defendant  ^ppear  to  treat  such  matter  as  affording  a  defence. 
It  is,  at  all  events,  settlet),  that  matter  ill  pleaded,  if  not  matter  immaterial, 
may  render  a  plea  bad  f6r  duplicity  ;  and  that  this  result  will  be  produced, 
if  both  defences  would  separately  be  good  after  verdict,  even  if  incapable  of 
being  sustained  on  demurrer.     Purssord  v.  Peck,  9  M.  &  W.  170. 

On  the  other  hand,  in  Tucker  v.  Ladd,  7  Cowen,  450,  the  court  recog- 
nised the  principle,  that  several  facts  going  to  make  up  one  point,  may  be 
pleaded,  without  vitiating  the  plea,  and  the  same  doctrine  may  be  found 
asserted  in  the  case  of  Patcher  v.  Sprague,  2  Johns.  462,  and  Strong  v. 
Smith,  3  Caines,  160.  These  cases  have  since  been  generally  followed 
in  New  York,  as  well  as  by  the  other  courts  of  this  country  ;  Russell  v. 
Rogers,  1.5  Wend.  351;  Bickley  v.  Moore,  1  M'Cord,  464;  Potter  v. 
Titcomb,  10  Maine,  53;  Commonweakh  v.  Curtis,  11  Pick.  134;  Wad- 
darnsv.  Burnham,  1  Tyler,  233. 

Where  the  defendant  has  recourse  to  a  plea,  bad  for  duplicity,  as  con- 
taining several  points,  any  one  of  which  would  have  been  a  sufficient 
defence,  and  the  plaintiff  does  not  choose  to  demur,  he  must,  at  the  risk  of 
a  demurrer  from  the  other  side,  traverse  all  the  material  points  averred,  for 
even  on  protestation  as  to  the  rest,  and  issue  found  in  his  favour  as  to  one, 
the  court  must  take  those  not  traversed  as  true,  and  give  judgment  thereoa 
for  the  defendant.  The  protestation,  of  course,  avails  nothing  in  the  action 
in  which  it  is  employed,  and  merely  serves,  where  the  issue  is  found  for 
the  parly  protesting,  to  prevent  an  estoppel  in  a  future  controversy,  between 
the  same  parties.  Richards  v.  Allen,  1  Bibb,  Ken.  R.  189.  Gould  v.  Ray, 
13  Wend.  639.  Nor  is  any  danger  to  be  apprehended  from  a  traverse  of 
both  the  defences  set  forth  in  a  plea  bad  for  duplicity.  Although  this  defect 
cannot  be  taken  advantage  of  on  a  demurrer  by  the  opposite  party,  unless 
special,  except  in  the  case  of  a  plea  in  abatement,  to  which  the  statutes 
requiring  the  causes  of  demurrer  on  points  not  of  substance,  to  be  set  forth, 
do  not  apply  ;  Esdaile  v.  Lund,  12  M.  &  W,  606  ;  yet  it  has  been  deter- 
mined, that  where  the  duplicity  of  the  replication  consists  merely  in  putting 
in  issue  two  distinct  defences  raised  by  the  plea,  if  the  defendant  demur,  judg- 
ment will  be  rendered  for  the  plaintiff.  Reynolds  v.  Blackburn,  7  Ad.  & 
El.  161. 

The  point  decided  in  Robinson  v.  Raley,  that  the  whole  of  the  facts  going 
to  make  up  a  single  point  in  the  plea,  may  be  severally  traversed  by  the 
replication,  will  be  found  supported  in  New  York,  by  a  series  of  cases,  ex- 
tending as  far  back  as  .Strong  v.  Smith,  3  Caines.  In  that  case  it  was 
determined,  that  where  the  defendant  had  pleaded  to  trespass  quare  clau- 
sum  fregit,  seisin  in  fee  in  A.,  and  a  demise  from  him,  the  replication  might 
traverse  both  the  seisin  and  demise.  Subsequently,  it  was  held  in  Patcher 
V.  Sprague,  that  the  plaintiff  could  not  sustain  a  demurrer  to  a  replication 
traversing  the  two  distinct  allegations  in  a  plea,  that  certain  horses,  seized  in 
an  attachment,  were  the  property  of  the  parly  sued  in  the  attachment,  and 
that  the  defendant  had  taken  them  by  the  command  of  the  sheriff.  The 
same  doctrine  has  since  been  very  strongly  maintained,  in  the  cases  of 
M'Clure  v.  Erwin,  3  Cowen,  213,  and  Tucker  v.  Ladd,  7  Cowen,  450.  In 
the  latter  case,  the  plea  averred,  in  bar  of  the  plaintiff's  action  for  money 
had  and  received,  that  the  money  therein  claimed,  equitably  belonged  to  a 


440  smith's   leading   cases. 

third  person,  against  whom  the  defendants,  conjointly  with  one  B,,  had 
obtained  judgment  in  another  suit,  and  that  they  had  since  become  sole 
owners  of  the  judgment.  The  replication  traversed  all  the  facts  thus  set 
forth  ;  and  on  demurrer  by  the  defendant,  the  court  held,  that  the  plea  being 
single,  as  containing  nothing  more  than  was  necessary  to  make  up  a  single 
point  in  defence,  the  replication  could  not  be  considered  double,  in  travers- 
ing all  the  facts  essential  to  that  point.  M'Clure  v.  Erwin,  is  to  the  same 
efiecl,  and  the  defendants  were  there  permitted,  in  their  rejoinder,  to  tra- 
verse an  averment  in  the  replication,  that  they  had  notice  of  a  suit,  and  at  the 
same  time  to  allege,  in  avoidance,  that  the  plaintiff  had  not  availed  himself 
of  a  good  defence  to  such  suit,  for  the  damage  inflicted  on  him  by  which  he 
now  sought  to  render  the  defendants  responsible.  This  rejoinder  Avas  held 
good,  because  to  make  its  affirmative  matter,  that  there  was  a  good  defence 
to  the  suit  whereby  the  plaintiffs  had  been  injured,  a  bar  to  the  present  ac- 
tion, it  was  necessary  previously  to  traverse  the  allegation  in  the  reply,  that 
the  defendants  had  received  notice  to  appear,  and  make  such  defence  them- 
selves. To  illustrate  the  principle  here  recognised,  it  may  be  observed, 
that  to  a  declaration  on  a  covenant  of  warranty,  averring  eviction  by  a  judg- 
ment in  suit  brought  on  title  paramount,  and  notice  given  at  the  time  to  the 
present  defendant,  to  come  in  and  defend  such  suit,  the  latter,  without  incur- 
ring the  fault  of  duplicity,  may  plead  traversing  the  notice,  and  setting  forth 
a  good  defence  to  the  suit,  wherein  the  plaintifl'on  the  warranty  was  evicted. 
In  the  case  of  Strong  v.  Smith,  already  cited  from  Caines,  as  the  first  of 
the  series  of  authorities  in  New  York,  for  the  principle,  that  several  facts^ 
may  be  put  in  issue  by  one  traverse,  Livingston,  J.,  placed  the  foundation 
of  the  rule  on  the  ground  assumed  by  Tindal,  C.  J.,  in  defending  the  repli- 
cation in  Bardons  v.  Selby,  supra,  155,  that  if  the  plea  were  single,  a  repli- 
cation although  traversing  the  whole,  could  not  be  double.  It  must  however 
be  observed,  that  in  Robinson  v.  Raley,  although  there  were  two  points  in 
the  plea,  each  necessary  to  make  a  good  defence,  the  i-eplication  did  not 
attempt  to  traverse  both,  but  merely  the  facts  going  to  make  up  one,  that 
the  defendant  had  not  exceeded  his  commonable  right  ;  the  other  point,  that 
such  commonable  right  existed,  being  left  untouched.  De  Wolf  v.  Bevan, 
13  M.  &  AV.  169.  On  this  distinction,  between  a  traverse  of  several  facts, 
necessary  to  make  up  one  point,  and  a  traverse  of  several  points,  though 
necessary  to  make  a  good  plea,  the  Supreme  Court  of  New  York,  by  a 
judgment  subsequently  affirmed  in  error,  decided,  that  where  the  defendants 
pleaded,  that  the  promissory  note  on  which  suit  was  brought,  was  made  by 
them  jointly  with  B.,  and  that  the  plaintiffs  had  subsequently  released  B.  ; 
a  replication  traversing  both  the  joint  making  and  the  release  was  bad  for 
duplicity.  Tubbs  v.  Caswell,  8  Wend.  129.  The  Chancellor,  in  deliver- 
ing his  opinion  in  the  court  of  errors,  argued  that  the  two  averments  in  the 
plea,  though  both  essential  to  a  valid  defence,  and  constituting  together  but 
a  single  plea,  were  yet  two  distinct  points  ;  and,  as  such,  not  within  the 
decision  in  Robinson  v.  Raley.  It  would  certainly  appear  that  this  doctrine 
is  undoubted  law,  since  it  is  supported  at  once  by  authority,  and  by  the 
whole  reason  of  the  system  of  pleading  at  common  law,  which  constantly 
tended  to  narrow  the  issue  to  a  single  point.  De  Wolf  v.  Bevan,  13  M.  & 
W.  160.  There  is,  however,  some  difficulty  in  applying  it  in  practice,  from 
the  want  of  any  certain  test,  whereby  to  discriminate  between  those  cases, 


MILLER    V.     RACE. 


441 


in  which  several  averments  go  to  make  up  a  smgle  point,  and  may,  there- 
fore, be  traversed  together,  and  those  in  which  they  each  constitute  a  distinct 
point,  though  all  essential  to  the  validity  of  the  plea.  Thus  each  of  the 
several  facts  which  were  jointly  denied  in  Tucker  v.  Ladd,  and  Strong  v. 
Smith,  by  one  traverse,  might  have  been  contended  to  be  as  much  distinct 
points,  as  those  which  were  held  to  have  that  character,  in  the  case  of  Tubbs 

V.  Caswell.  ,1  . 

The  case  of  Patcher  v.  Sprague,  must  be  regarded  as  nearly  the  exact 
counterpart  of  Robinson  v.  Raley.  As  in  the  English  case,  the  replication 
traversed  several  distinct  facts  in  the  plea,  without  putting  the  whole  in 
issue,  and  the  court,  while  determining  that  it  was  not  bad  for  duplicity, 
also  held,  that  in  concluding  to  the  country,  and  not  with  a  verification,  it 
was  ricrht  in  principle,  and  supported  by  authority.  The  rule  was  said  to 
be,  thai  when  a  traverse  is  so  direct,  and  of  such  a  character,  that  it  could 
not  be  answered  by  the  opposite  party,  by  matter  in  confession  and  avoid- 
ance, without  a  departure  from  the  plea,  the  replication  should  conclude  to 
the  country  ;  since  the  defendant  can  lose^nothing  by  being  compelled  to 
add  the  simiUter,  and  join  issue  instead  of 'Rejoining.  The  doctrine  that  a 
traverse  of  part  of  the  plea,  should  conclude  with  a  verification,  seems  a 
relic  of  the  formal  traverse,  with  an  absque  hoc,  which  is  now  seldomused. 
In  the  case  of  Snyder  v.  Croy,  in  the  same  volume  of  reports,  428,  it  was 
determined,  that  even  where  such  formal  traverse  was  used,  if  it  put  the 
whole  matter  of  the  plea  in  issue,  a  conclusion  to  the  country  would  still  be 
good.  ^ 


*MILLER  V.  RACE.  [    *250    ] 

HIL.  31  GEO.  2. 

[rEPORTKD  1  BURR.  452.] 

Property  in  a  bank-note  passes  like  that  in  casli,by  delivery  ;  and  a  party  taking  it,  bona 
fide  and  for  value,  is  entitled  to  retain  it  as  against  a  former  owner  from  whom  it  has 
been  stolen. 

It  was  an  action  of  trover  against  the  defendant,  upon  a  bank-note,  for 
the  payment  of  twenty-one  pounds  ten  shillings  to  one  William  Finney,  or 
bearer,  on  demand. 

The  cause  came  on  to  be  tried  before  Lord  Mansfield,  at  the  sittings  in 
Trinity  term  last  at  Guildhall,  London  :  and  upon  the  trial  it  appeared  that 
William  Finney,  being  possessed  of  this  bank-note  on  the  11th  of  Decem- 
ber, 1756,  sent  it  by  the  general  post,  under  cover,  directed  io  one  Bernard 
Odenharty,  at  Chipping  Norton  in  Oxfordshire  ;  that  on  the  same  night  the 
mail  was  robbed,  and  the  bank-note  in  question  (amongst  other  notes)  taken 
and  carried  away  by  the  robber  ;  that  this  bank-note,  on  the  12th  of  the  same 


443  smith's  leading  cases. 

December,  came  into  the  hands  and  possession  of  the  plaintiff,  for  a  full  and 
valuable  consideration,  and  jn  the  usual  course  and  way  of  his  business, 
and  without  any  notice  or  knowledge  of  this  bank-note  being  taken  out  of 
the  mail. 

Is  was  admitted  and  agreed  that,  in  the  common  and  known  course  of 
trade,  bank-notes  are  paid  by  and  received  of  the  holder  or  possessor  of 
them,  as  cash;  and  that  in  the  usual  way  of  negotiating  bank-notes,  they 
pass  from  one  person  to  another  as  cash,  by  delivery  only,  and  without  any 
further  inquiry  or  evidence  of  title  than  what  arises  from  the  possession.  It 
appeared  that  Mr.  Finney,  having  notice  of  this  robbery  on  the  13th  of 
December  applied  to  the  Bank  of  England  "  to  stop  the  payment  of  this 
r*2511  "°^^'"  *^vhich  was  ordered  acccordingly,  upon  Mr.  Finney's  enter- 
L         -■  ering  into  proper  security  "  to  indemnify  the  bank." 

Some  little  time  after  this  the  plaintiff  applied  to  the  bank  for  the  pay- 
ment of  this  note  ;  and,  for  that  purpose,  delivered  the  note  to  the  defend- 
ant, who  is  a  clerk  in  the  bank ;  but  the  defendant  refused  either  to  pay  the 
note,  or  to  re-deliver  it  to  the  plaintiff.  Upon  which  this  action  was  brought 
against  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff,  and  the  sum  of  21/.  10s.  dam- 
ages :  subject,  nevertheless,  to  the  opinion  of  this  court  upon  this  question — 
"  Whether,  under  the  circumstances  of  this  case,  the  plaintiff  had  a  suffi- 
cient property  in  this  bank-note  to  entitle  him  to  recover  in  the  present 
action?" 

Mr.  fVilliams  was  beginning  on  behalf  of  the  plaintiff; — 

But  Lord  Mansfield  said,  "That  as  the  objection  came  from  the  side  of 
the  defendant,  it  was  rather  more  proper  for  the  defendant's  counsel  to  state 
and  urge  their  objection." 

Sir  Richard  Lloyd  for  the  defendant. 

The  present  action  is  brought,  not  for  the  money  due  upon  the  note  ;  but 
for  the  note  itself,  the  paper,  the  evidence  of  the  debt.  So  that  the  right  to 
the  money  is  not  the  present  question  ;  the  note  is  only  an  evidence  of  the 
money's  being  due  to  him  as  bearer. 

The  note  must  either  come  to  the  plaintiff  by  assignment,  or  must  be 
considered  as  if  the  bank  gave  a  fresh,  separate,  and  distinct  note  to  each 
bearer.  Now  the  plaintiff  can  have  no  right  by  the  assignment  of  a  robber. 
And  the  bank  cannot  be  considered  as  giving  a  new  note  to  each  bearer : 
though  each  bearer  may  be  considered  as  having  obtained  from  the  bank  a 
new  promise. 

I  do  not  say  whether  the  bank  can  or  cannot  stop  payment :  that  is 
another  question.     But  the  note  is  only  an  instrument  of  recovery. 

Now  this  note,  or  these  goods  (as  I  may  call  it,)  was  the  property  of  Mr. 
Finney,  who  paid  in  the  money  :  he  is  the  real  owner.  It  is  like  a  medal 
which  might  entitle  a  man  to  payment  of  money,  or  to  any  other  advantage. 
And  it  is  by  Mr.  Finney's  authority  and  request  that  Mr.  Race  detained  it. 
r*9p;9i  ■'■^  '^^y  ^^  objected  "  that  this  note  is  to  be  considered  *as  cash  in 
L  "^-^  the  usual  course  of  trade."  But  still  the  course  of  trade  is  not  at 
all  affected  by  the  present  question,  about  the  right  to  the  note.  A  different 
species  of  action  must  be  brought  for  the  note  from  what  must  be  brought 
against  the  bank  for  the  money.  And  this  man  has  elected  to  bring  trover 
for  the  note  itself,  as  owner  of  the  note  ;  and  not  to  bring  his  action  against 


MILLER    V.    RACE.  443 

the  bank,  for  the  money.  In  which  action  of  trover  property  cannot  be 
proved  in  the  plaintifl',  for  a  special  proprietor  can  have  no  right  against  the 
true  owner. 

The  cases  that  may  affect  the  present  are  1  Sa!k.  126,  M.  ;  10  W.  3  ; 
Anonymous,  coram  Holt,  Chief  Justice,  at  Nisi  Prius  at  Guildhall.  There 
Lord  Chief  Justice  Holt  held,  "That  the  right  owner  of  a  bank-bill,  who 
lost  it,  might  have  trover  against  a  stranger  who  found  it :  but  not  against 
the  person  to  whom  the  finder  transferred  it  for  a  valuable  consideration, 
by  reason  of  the  course  of  trade,  which  creates  a  property  in  the  assignee 
or  bearer."  1  Lord  Raymond,  738,  S.  C,  in  which  case  the  note  was  paid 
away  in  the  course  of  trade :  but  this  remains  in  the  man's  hands,  and  is 
not  come  into  the  course  of  trade.  H.  12  W.  3,  B.  R. ;  1  Salk.  283,  284, 
Ford  V.  Hopkins,  per  Holt,  Chief  Justice,  at  Nisi  Prius  at  Guildhall.  "If 
bank-notes,  exchequer-notes,  or  million-lottery  tickets,  or  the  like,  are  stolen 
or  lusL,  the  owner  has  such  an  interest  or  property  in  them  as  to  bring  an 
action,  into  whatsoever  hands  they  are  come.  Money  or  cash  is  not  to  be 
distinguished :  but  these  notes  or  bills  are  distinguishable,  and  cannot  be 
reckoned  as  cash ;  and  they  have  distinct  marks  and  numbers  on  them." 
Therefore  the  true  owner  may  seize  these  notes  wherever  he  finds  them,  if 
not  passed  away  in  the  course  of  trade. 

1  Strange,  505.  H.  8  G-.  1.  In  Middlesex,  coram  Pratt,  Chief  Justice, 
Armory  v.  Delamirie — A  chimney-sweeper's  boy  found  a  jewel.  It  was 
ruled,  « that  the  finder  has  such  a  property  as  will  enable  him  to  keep  it 
against  all  but  the  rightful  owner  ;  and,  consequently,  may  maintain  trover." 

This  note  is  just  like  any  other  piece  of  property,  until  passed  away  in 
the  course  of  trade.  And  here  the  defendant  acted  as  agent  to  the  true 
owner. 

Mr.  IFilliams,  contra,  for  the  plaintiff. 

*The  holder  of  this  bank-note,  upon  a  valuable  consideration,  has  ^-^9^0-1 
a  right  to  it,  even  against  the  true  owner.  L         -' 

1st.  The  circulation  of  these  notes  vests  a  property  in  the  holder,  who 
comes  to  the  possession  of  it  upon  a  valuable  consideration. 

2ndly.  This  is  of  vast  consequence  to  trade  and  commerce :  and  they 
would  be  greatly  incommoded  if  it  were  otherwise. 

3rdly.  This  falls  within  the  reason  of  a  sale  in  market-overt ;  and  ought 
to  be  determined  upon  the  same  principle. 

First — He  put  several  cases  where  the  usage,  course,  and  convenience  of 
trade,  made  the  law,  and  sometimes  even  against  an  act  of  paliament.  3 
Keb.  444,  Stanley  v.  Ayles,  per  Hale,  Chief  Justice,  at  Guildhall.  2 
Strange,  1000,  Lumley  v.  Palmer:  where  a  parol  acceptance  of  a  bill  of 
exchange  was  holden  sufficient  against  the  acceptor.     1  Salk.  23. 

Secondly — This  paper  credit  has  been  always,  and  with  great  reason, 
favoured  and  encouraged.     2  Strange,  946,  Jenys  v.  Fawler  et  al. 

The  usage  of  these  notes  is,  "  that  they  pass  by  delivery  onl}^ ;  and  are 
considered  as  current  cash  ;  and  the  possession  always  carriers  with  it  the 
property."      1  Salk.  126,  pi.  5,  is  in  point. 

A  particular  mischief  is  rather  to  be  permitted  than  a  general  incon- 
venience incurred.  And  Mr.  Finney,  who  was  robbed  of  this  note,  was 
guilty  of  some  latches  in  not  preventing  it. 

Upon  Sir  Richard  Lloyd's  argument,  a  holder  of  a  note  might   suffer 


444  smith's   leading  cases. 

the  loss  of  it  for  want  of  title  against  a  true  owner  ;  even  if  there  was 
a  chasin  in  the  transfer  of  it  through  one  only  out  of  five  hundred 
hands. 

Tliirdly — This  is  to  be  considered  upon  the  same  foot  as  a  sale  in  market- 
overt. 

2  Inst.  713.     "A  sale  in  market-overt  binds  those  that  had  a  right." 

But  it  is  objected  by  Sir  Richard,  "that  there  is  a  substantial  difTerence 
between  a  right  to  the  note  and  a  right  to  the  money."  But  I  say  the  right 
to  the  money  will  attract  to  it  a  right  to  the  paper.  Our  right  is  not  by 
r«9^4U  assignment,  but  by  law,  by  the  usage  and  custom  of  trade.  *I  do  not 
L  -^  contend  that  the  robber,  or  even  the  finder  of  a  note,  has  a  right  to 
the  note  ;  but,  after  circulation,  the  holder  upon  a  valuable  consideration 
has  a  right. 

We  have  a  property  in  this  note :  and  have  recovered  the  value  against 
the  withholder  of  it.  It  is  not  material  what  action  we  could  have  brought 
against  the  bank. 

Then  he  answered  Sir  Richard  Lloyd's  cases  ;  and  agreed,  that  the  true 
owner  might  pursue  his  properly,  where  it  come  into  the  hands  of  another, 
without  a  valuable  consideration,  or  not  in  the  course  of  trade  :  which  is  all 
that  Lord  Chief  Justice  Holt  said  in  1  Salk.  284. 

As  to  1  Strange,  505,  he  agreed  that  the  finder  has  the  property  against 
all  but  the  rightful  owner  :  not  against  him. 

Sir  Richard  Lloyd  in  reply  : — 

I  agree  that  the  holder  of  the  note  has  a  special  property :  but  it  does  not 
follow  that  he  can  maintain  trover  for  it  against  the  true  owner. 

This  is  not  only  without  but  against  the  consent  of  the  owner. 

Supposing  this  note  to  be  a  sort  of  mercantile  cash  ;  yet  it  has  an  ear- 
mark, by  which  it  may  be  distinguished:  therefore  trover  will  lie  for  it. 
And  so  is  the  case  of  Ford  v.  Hopkins. 

And  you  may  recover  a  thing  stolen  from  a  merchant,  as  well  as  a  thing 
stolen  from  another  man.  And  this  note  is  a  mere  piece  of  paper :  it  may  be 
as  well  stopped  as  any  other  sort  of  mercantile  cash  (as  for  instance,  a 
policy  which  has  been  stolen.)  And  this  has  not  been  passed  away  in 
trade  :  but  remains  in  the  hands  of  the  true  owner.  And  therefore  it  does 
not  signify  in  what  manner  they*  are  passed  away,  when  they  are  passed 
away  ;  for  this  was  not  passed  away.  Here,  the  true  owner,  or  his  ser- 
vant (which  is  the  same  thing,)  detains  it.  And  surely  robbery  does  not 
divest  the  property. 

This  is  not  like  goods  sold  in  market-overt :  nor  does  it  pass  in  the  way 
of  a  market  overt ;  nor  is  it  within  the  reason  of  a  market-overt.  Suppose 
it  was  a  watch  stolen  :  the  owner  may  seize  it,  though  he  finds  it  in  a  mar- 
ket-overt, before  it  is  sold  there.  But  there  is  no  market-overt  for  bank 
notes. 

^„__-,  *I  deny  the  holder's  (merely  as  holder)  having  a  right  to  the  note, 
L  -'  against  the  true  owner  :  and  I  deny  that  the  possession  gives  a  right 
to  the  note. 

Upon  this  argument  on  Friday  last  Lord  Mansfield  then  said,  that  Sir 
Richard  Lloyd  had  argued  it  so  ingeniously,  that  (though  he  had  no  doubt 
about  the  matter)  it  might  be  proper  to  look  into  the  cases  he  had  cited,  in 
order  to  give  a  proper  answer  to  them :  and  therefore  the  court  deferred 


MILLER    V.     RACE.  445 

giving  their  opinion  to  this  day.  But  at  the  same  time  Lord  Mansfield 
said  he  would  not  wish  to  have  it  understood  in  the  city  that  the  court  had 
any  doubt  about  the  point. 

Lord  Mansfield  now  dehvered  the  resolution  of  the  court. 

After  stating  the  case  at  large,  he  declared,  that  at  the  trial  he  had  no  sort 
of  doubt  but  that  this  action  was  weji  brought,  and  would  lie  against  the 
defendant  in  the  present  case ;  upon  the  general  course  of  business,  and 
from  the  consequences  to  trade  and  commerce;  which  would  be  much 
incommoded  by  a  contrary  determination. 

It  has  been  very  ingeniously  argued  by  Sir  Richard  Lloyd,  for  the 
defendant.  But  the  whole  fallacy  of  the  argument  turns  upon  comparing 
bank-notes  to  what  they  do  not  resemble,  and  what  they  ought  not  to  be 
compared  to,  viz.,  to  goods,  or  to  securities,  or  documents  for  debts. 

Now,  they  are  not  goods,  nor  securities,  nor  documents  for  debts,  nor  are 
so  esteemed  :  but  are  treated  as  money,  as  cash,  in  the  ordinary  course  and 
transaction  of  business,  by  the  general  consent  of  mankind  ;  which  gives 
them  the  credit  and  currency  of  money,  to  all  intents  and  purposes.  They 
are  as  much  money  as  guineas  themselves  are  ;  or  any  other  current  coin, 
that  is  used  in  common  payments,  as  money  or  cash. 

They  pass  by  a  will,  which  bequeaths  all  the  testator's  money  or  cash  ; 
and  are  never  considered  as  securities  for  money,  but  as  money  itself. 
Upon' Lord  Ailesbury's  will,  900/.  in  bank-notes  was  considered  as  cash. 
On  payment  of  them,  whenever  a  receipt  is  required,  the  receipts  are 
always  given  as  for  money,  not  as  for  securities  or  notes. 

So,  on  bankruptcies,  they  cannot  be  followed  as  identical  *and  r^nan-i 
distinguishable  from  money  :  but  are  always  considered  as  money  L  J 
or  cash. 

'Tis  pity  that  reporters  sometimes  catch  at  quaint  expressions  that  may 
happen  to  be  dropped  at  the  bar  or  bench  ;  and  mistake  their  meaning.  It 
has  been  quaintly  said,  "that  the  reason  why  money  cannot  be  followed  is, 
because  it  has  no  ear-mark ;"  but  this  is  not  true.  The  true  reason  is, 
upon  the  account  of  the  currency  of  it :  it  cannot  be  recovered  after  it  has 
passed  in  currency.  So  in  case  of  money  stolen,  the  true  owner  cannot 
recover  it ;  after  it  has  been  paid  away  fairly  upon  a  valuable  and  bona  fide 
consideration  :  but  before  moyiey  has  passed  in  currency,  an  action  may  be 
brought  for  the  money  itself.  There  was  a  case  in  G.  1,  at  the  sittings, 
Thomas  v.  Whip,  before  Lord  Macclesfield  ;  which  was  an  action  upon 
assumpsit,  by  an  administrator  against  the  defendant,  for  money  had  and 
received  to  his  use.  The  defendant  was  nurse  to  the  intestate  during  his 
sickness  ;  and  being  alone,  conveyed  away  the  money.  And  Lord  Mac- 
clesfield held  that  the  action  lay.  Now  this  must  be  esteemed  a  finding  at 
least. 

Apply  this  to  the  case  of  a  bank-note.  An  action  may  lie  against  the 
finder,  it  is  true  ;  (and  it  is  not  at  all  denied  :)  but  not  after  it  has  been  paid 
away  in  currency.  And  this  point  has  been  determined  even  in  the  infancy 
of  bank-notes  :  for  1  Salk.  12G,  M.  10  W.  3,  at  Nisi  Prius,  is  in  point.  And 
Lord  Chief  Justice  Holt  there  says,  that  it  is  "  by  reason  of  the  course  of 
trade  ;  which  creates  a  property  in  the  assignee  or  bearer."  (And  "  the 
bearer"  is  a'more  proper  expression  than  assignee.) 

Here  an  innkeeper  took  it,  bona  fide,  in  his  business,  from  a  person  who 


446  smith's  leading  cases. 

made  the  appearance  of  a  gentleman.  Here  is  no  pretence  or  suspicion  of 
collusion  with  the  robber  ;  for  this  matter  was  strictly  inquired  and  examined 
into  at  the  trial  ;  and  is  so  stated  in  the  case,  "  that  he  took  it  for  a  full  and 
valuable  consideration,  in  the  usual  course  of  business."  Indeed,  if  there 
had  been  any  collusion,  or  any  circumstances  of  unfair  dealing-,  the  case 
had  been  much  otherwise.  If  it  had  been  a  note  for  1000/.  it  might  have 
been  suspicious  ;  but  this  was  a  small  note  for  21/.  10*.  only  ;  and  money 
given  in  exchange  for  it. 

Another  case  cited,  was  a  loose  note  in  1  Ld.  Raym.  738,  ruled  by  Lord 
j.^^  -,  Chief  Justice  Holt  at  Guildhall,  in  1698  ;  which  *proves  nothing 
L  -^  for  the  defendant's  side  of  the  question  ;  but  it  is  exactly  agreeable 
to  what  is  laid  down  by  my  Lord  Chief  Justice  Holt,  in  the  case  I  have  just 
mentioned.  The  action  did  not  lie  against  the  assignee  of  the  bank-bill ; 
because  he  had  it  for  valuable  consideration. 

In  that  case  he  had  it  from  the  person  who  found  it ;  but  the  action  did 
not  lie  against  him,  because  he  took  it  in  the  course  of  currency  :  and 
therefore  it  could  not  be  followed  in  his  hands.  It  never  shall  be  followed 
into  the  hands  of  a  person  who  bona  fide  took  it  in  the  course  of  currencjr, 
and  in  the  way  of  his  business. 

The  case  of  Ford  v.  Hopkins  was  also  cited  :  which  was  in  Hil.  12  W. 
3,  coram  Holt,  Chief  Justice,  at  Guildhall ;  and  was  an  action  of  trover 
for  million-lottery  tickets.  But  this  must  be  a  very  incorrect  report  of  that 
case  ;  it  is  impossible  that  it  can  be  a  true  representation  of  what  Lord 
Chief  Justice  Holt  said.  It  represents  him  as  speaking  of  bank-notes, 
exchequer-notes,  and  million-lottery  tickets,  as  like  to  each  other.  Now  no 
two  things  can  be  more  unlike  to  each  other  than  a  lottery-ticket  and  a  bank 
note.  Lottery-tickets  are  identical  and  specific ;  specific  actions  lie  for 
ihem.  They  may  prove  extremely  unequal  in  value  :  one  may  be  a  prize  ; 
another  a  blank.  Land  is  not  more  specific  than  lottery-tickets  are.  It  is 
there  said,  "that  the  delivery  of  the  plaintiff's  tickets  to  the  defendant  as 
that  case  was,  was  no  change  of  property."  And  mOst  clearly  it  was  no 
change  of  the  property ;  so  far  the  case  is  right.  But  it  is  here  urged  as  a 
proof  "  that  the  true  owner  may  follow  a  stolen  bank-note,  into  what  hands 
soever  it  shall  come." 

Now  the  whole  of  that  case  turns  upon  the  throwing  in  bank-notes,  as 
being  like  to  lottery  tickets. 

But  Lord  Chief  Justice  Holt  could  never  say,  "  that  an  action  would  lie 
against  the  person  who,  for  a  valuable  consideration  had  received  a  bank- 
note which  had  been  stolen  or  lost,  and  bona  fide  paid  to  him ;"  even 
though  the  action  was  brought  by  the  true  owner :  because  he  had  deter- 
mined otherwise  but  two  years  before  ;  and  because  bank-notes  are  not  like 
lottery-tickets,  but  money. 

The  person  who  took  down  this  case  certainly  misunderstood  Lord  Chief 
Justice  Holt,  or  mistook  his  reasons.     For  this  reasoning  would  prove,  (if  it 

„  Q-,  was  true,  as  the  reporter  ^represents  it,)  that  if  a  man  paid  to  a 
L  -'goldsmith  500/.  in  bank-notes,  the  goldsmith  could  never  pay  them 
away. 

A  bank-note  is  constantly  and  universally,  both  at  home  and  abroad, 
treated  as  money,  as  cash  ;  and  paid  and  received  as  cash  ;  and  it  is  neces- 


MILLER     V.    RACE. 


447 


sary,  for  the  purposes  of  commerce,  that  their  currency  should  be  estab- 
lished and  secured. 

There  was  a  case  in  the  Court  of  Chancery,  on  some  of  Mr.  Child's 
notes,  payable  to  the  person  to  whom  they  were  given  or  bearer.  The 
notes  had  been  lost  or  destroyed  many  years.  Mr.  Child  was  ready  to  pay 
them  to  the  widow  and  administratrix  of  the  person  to  whom  they  were 
made  payable  ;  upon  her  giving  bond,  with  two  responsible  sureties,  (as  is 
the  custom  in  such  cases,)  to  indemnify  him  against  the  bearer,  if  the  notes 
should  ever  be  demanded.  The  administratrix  brought  a  bill ;  which  was 
dismissed,  because  she  either  could  not,  or  Avould  not  give  the  security 
required.  No  dispute  ought  to  be  made  with  the  bearer  of  a  cash  note  :  in 
regard  to  commerce,  and  for  the  sake  of  the  credit  of  these  notes  ;  though  it 
may  be  both  reasonable  and  customary  to  stay  the  payment  til]  inquiry  can 
be  made  whether  the  bearer  of  the  note  came  by  it  fairly  or  not. 

Lord  Mansfield  declared  that  thn  court  were  all  of  the  same  opinion  for 
the  plaintiff;  and  that  Mr.  Justice  JVilmot  concurred. 

Rule — That  the  postea  be  delivered  to  the  plaintiff. 


The  general  rule  of  the  law  of  Eng- 
land is,  that  no  man  can  acquire  a  title 
to  a  chattel  personal  from  any  one  who«. 
has  himself  no  title  to  it,  except  only  by 
sale  in  market-overt.  Peer  v.  Humph- 
rey, 2  Adol.  &  Ell.  595.  The  case  of 
Miller  v.  Race,  however,  has  established 
an  exception  in  the  case  of  negotiable 
instruments,  the  property  in  which  will 
pass,  like  that  in  coin,  along  with  the 
possession,  when  they  have  been  put 
into  that  state  in  which,  according  to 
the  usage  and  custom  of  trade,  they  are 
transferred  from  one  man  to  another  by 
delivery.  This  was  again  determined 
in  Grant  v.  Vaughan,  3  Burr.  1516,  in 
the  case  of  a  draft  by  a  merchant  on  his 
banker  ;  and  in  Gorgier  v,  Mieville,  3 
B.  &  C.  45,  in  the  case  of  a  bond  given 
by  the  King  of  Prussia,  by  which  he 
declared  himself  and  his  successors 
bound  to  every  person  lolio  should  for 
the  time  being  be  the  holder  of  the 
bond,  and  which  was  proved  to  be  sale- 
able in  the  market,  and  (with  other 
bonds  of  a  like  description  to  pass 
from  hand  to  hand  at  a  variable  price. 
See  Lickbarrovv  v.  Mason,  5  T.  R.  683, 
respecting  bills  of  lading ;  Zwinger  v. 
Samuda,  &c.,  7  Taunt.  265;  Lucas  v. 
Dorrein,  ibid.  278,  as  to  dock  warrants. 
See  also  Lang  v.  Smyth,  7  Bingh.  284, 
the  facts  of  which  will  presently  be 
stated.  In  the  Attorney-General  v. 
Bouwens,  4  M.  &  W.  171,  the  forms  of 


several  foreign  securities  accustomably 
transferable,  like  cash  in  this  country, 
vwill  be  found. 

A  negotiable  instrument  being  clearly 
transferable  by  any  person  holding  it,  so 
as  by  delivery  thereof  to  give  a  good 
title  "  to  any  person  honestly  r-^t^rq-] 
acquiring  *it,"  per  Abbott,  C.  ^  ^"^  ^ 
J.,  3  B.  &  0.  47,  the  next  question  is, 
what  instruments  may  with  propriety 
be  termed  negotiable.  And  to  this  it 
may  be  answered.  That  whenever  an 
instrument  is  such  that  the  legal  right 
to  the  property  secured  thereby  passes 
from  one  man  to  another  by  the  deliv- 
ery thereof,  it  is,  properly  speaking,  a 
negotiable  instrument,  and  the  title  to 
it  will  vest  in  any  person  taking  it  bona 
fide,  and  for  value,  whatever  may  be  the 
defects  in  the  title  of  the  person  trans- 
ferring it  to  him.  An  instrument  is 
called  negotiable  when  the  legal  right 
to  the  property  secured  by  it  passes  by 
its  delivery,  because,  although  an  instru- 
ment may  be  saleable  in  the  market, 
and  treated  in  many  respects  like  cash, 
yet,  if  by  a  transfer  of  it  nothing  pass 
but  a  right  to  sue  on  it  in  the  name 
of  the  transferror  or  original  party  to  it, 
such  an  instrument  is  not  properly 
speaking  negotiable.  Thus,  in  Glynn  v. 
Baker,  13  East,  509,  an  India  bond  was 
held  not  to  be  a  negotiable  instrument, 
(there  being  then  no  act  equivalent  to 
51  Geo.  3,  c.  64,  s,  4,  which  afterwards 


448 


SMITHS    LEADING    CASES. 


rendered  India  bonds  negotiable.  In 
that  case  the  plaintiff  and  the  defendant 
had  lodged  their  respective  India  bonds, 
with  the  same  bankers,  who  improperly- 
sold  the  defendant's  bonds,  and  on  his 
demand^  delivered  to  him  those  of  the 
plaintiff  to  the  same  amount,  and  paya- 
ble to  the  same  obligee,  viz.,  to  W.  G. 
Sibley  ;  the  defendant,  not  knowing  that 
the  bonds  handed  to  him  were  not  his 
own,  afiewards  sold  them,  and  received 
the  proceeds.  It  was  held  that  the  plain- 
tiff might  recover  the  amount  from  him 
in  an  action  for  money  had  and  received ; 
see  Williamson  v.  Thompson,  16  Ves. 
jun.,  44:3.  In  Gorgier  v.  Mieville  this 
case  was  cited,  and  relied  on  as  an 
authority  against  the  negotiability  of  the 
King  of  Prussia's  bond  ;  but  Abbott,  (1 
J.,  said  that  the  case  was  distinguishable 
from  Glynn  v.  Baker.  "There,"  said 
his  lordship,  "it  did  not  appear  that 
India  bonds  were  negotiable,  and  no 
other  person  could  have  sued  on  them 
hut  the  obligee.  Here,  on  the  con- 
trary, the  bond  is  payable  to  the  bearer, 
and  it  was  proved  at  the  trial  that 
bonds  of  this  description  were  nego- 
tiated like  Exchequer  bills."  It  may 
therefore  be  laid  down  as  a  safe  rule, 
that  where  an  instrument  is  by  the  cus- 
tom of  trade,  transfei'able,  like  cash,  by 
delivery,  and  is  also  capable  of  being 
sued  upon  by  the  person  holding  it  pro 
tempore,  there  it  is  entitled  to  the  name 
of  a  negotiable  instrument,  and  the 
property  in  it  passes  to  a  bona  fide  trans- 
feree for  value,  though  the  transfer  may 
not  have  taken  place  in  a  market-overt. 
But  that  if  either  of  the  above  requisites 
be  wanting,  i.  e.,  if  it  be  either  not 
accustomably  transferable,  or,  though  it 
be  accustomably  transferable,  yet,  if  its 
nature  be  such  as  to  render  it  incapable 
of  being  put  in  suit  by  the  party  hold- 
ing it  pro  tempore,  it  is  not  a  negotiable 
instrument,  nor  will  delivery  of  it  pass 
the  property  of  it  to  a  vendee,  however 
bona  fide,  if  the  transferror  himself  have 
not  a  good  title  to  it,  and  the  transfer 
be  made  out  o^ market-overt.  To  illus- 
trate these  propositions,  bills  and  notes 
payable  to  bearer,  or  payable  to  order 
and  indorsed  in  blank,  are  beyond  all 
doubt  negotiable  instruments  in  the  full 
sense  of  those  words.  Solomons  v.  Bank 
of  England,  13  East,  135 ;  Grant  v. 
Vaughan,  3  Burr.  1516  ;  Collins  v.  Mar- 
tin, 3  B.  &  P.  649 ;  Peacock  v.  Rhodes, 
Dougl.  636 ;  Wookey  v.  Pole,  4  B.  &  A. 
1 ;  for  they  are  both  accustomably  trans- 


ferable like  cash,  and  are  also  capable 
of  being  sued  on  by  the  holder  pro  tem- 
pore. But  if  such  a  bill  be  specially  in- 
dorsed, its  negotiability  is  at  an  end,  for 
it  becomes  thereby  incapable  of  being 
sued  upon  by  any  one  except  the  special 
indorsee.  Sigourney  v.  Lloyd,  8  B.  & 
C.  622,  5  Bingh.  525;  Archer  v.  Bank 
of  England,  Dougl.  639 ;  Treuttel  v. 
Barandon,  8  Taunt.  100.  In  Glyn  v. 
Baker,  the  court  appears  to  have  been 
of  opinion  that  even  had  the  jury  ex- 
pressly found  the  India  bond  to  be 
negotiable,  and  to  pass  accustomably  by 
delivery,  it  would  not  have  been  so  in 
contemplation  of  law.  "  If  it  be  meant," 
said  Lord  EUenborough,  "  to  likcu  this 
to  the  case  of  banker's  notes,  in  Miller 
V.  Race,  as  having  acquired  in  fact  a 
negotiable  quality,  and  being  received 
as  cash,  or  to  ordnance  debentures, 
notes,  bills,  and  other  securities,  of  the 
same  description,  wdiich  are  circulated 
daily  in  the  money-market,  the  fact  'of 
such  negotiability  should  be  stated.  But 
supjwsing  it  were  so  stated,  how  could 


a    right  of  action  be  made    to 


[*260] 


pass  *on  these  securities  by  such 
a  practice  to  the  holder  of  them, 
where  by  law  no  such  right  passes .' 
There  must  always  be  that  impediment 
existing  to  the  legal  negotiability  of 
such  instruments,  which  distinguishes 
them  from  bills  of  exchange,  and  secu- 
rities of  that  nature,  in  which  the  legal 
interest  passes,  under  the  law  merchant, 
by  indorsement  and  delivery  to  another," 
Taddy,  Serj.,  cited  a  case  of  Maclish 
V.  Ekins,  to  the  same  point,  a  short  note 
of  which  is  to  be  found  13  East,  515. 
See  also  'J'aylor  v.  Kymer,  3  B.  &  Ad. 
331,  and  Taylor  v.  Trueman,  1  M.  &  M. 
453  ;  which  were,  however,  decided  on 
the  construction  of  St.  6  G.  4,  c.  94  :  and 
the  expression  of  Ashurst,  J.,  2  T.  R. 
71,  and  post.  It  is  submitted,  therefore, 
as  at  least  probable,  that  if  the  right  of 
suing  on  an  instrument  should  not  ap- 
pear upon  the  face  of  it  to  be  extended 
beyond  one  particular  individual,  no 
usage  of  trade,  however  extensive,  would 
be  allowed  by  the  courts  (at  least  in  the 
case  of  an  English  instrument)  to  con- 
fer upon  it  the  character  and  incidents 
of  negotiability.  It  is,  however,  right 
to  mention  that  there  is  a  case  of 
Renteria  v.  Ruding,  1  M.  &  M.  511, 
which  seems  at  first  sight  to  militate 
against  this  doctrine.  In  that  case  the 
plaintiff  signed  a  bill  of  lading  for  goods, 
shipped  in  Spain  by  Bernardo  Echeluce, 


MILLER     V.     RACE. 


449 


to  be  Jelivered  in  London,  to  Messrs. 
O'Brien,  on  being-  paid  freight,  primage, 
and  average ;  there  was  no  mention  of 
assigns  in  the  bill  of  lading.  The  defen- 
dants having  received  the  goods,  and 
being  sued  for  freight,  Brougham  argued 
that'  tiie  bill  not  being  assignable  by 
indorsement,  they  were  not  liable.  A 
witness  was  then  called,  who  proved 
that  bills  of  lading  from  Spain  were  fre- 
quently in  the  same  form,  and  were 
nevertheless  treated  as  assignable  by 
indorsement.  Lord  Tenterden,  after  re- 
ferring to  the  Treatise  on  Shipping,  page 
2S6,  5th  edition,  and  reading  "  for  if  a 
person  accept  any  thing  which  he  knows 
to  be  subject  to  a  duty  01-  charge,  it  is 
natural  to  conclude  he  means  to  take 
the  duty  or  charge  on  himself,  and  the 
law  may  very  well  imply  a  promise  to 
perform  what  he  so  takes  upon  himself," 
said,  "  this  seems  to  me  to  be  the  correct 
principle,  and  the  oynission  of  the  words 
or  their  assigns  makes  no  diflerence." 
Now  if  Renieria  v.  Ruding  be  taken  to 
prove  that  a  bill  of  ladnXg  omitting  the 
word  assigns  is  nevertheless  assign- 
able, .so  as  to  pass  the  legal  right  in  the 
goods  to  the  indorsee,  it  certainly  docs 
appear  to  militate  against  the  doctrine 
above  contended  for,  and  seems  also 
contrary  to  the  opinion  expressed  by 
Ashurst,  J.,  in  'Lickbarrow  v.  JMason,  2- 
T.  R.  71;  where  his  lordshipsays,  "The 
assignee  of  a  bill  of  lading  trusts  to  the 
indorsement;  the  instrument  is  in  its 
nature  transferable  in  this  respect; 
therefore,  it  is  similar  to  the  case  of  a 
bill  of  exchange.  If  the  consignor  had 
intended  to  restrain  the  negotiability  of 
it,  he  should  have  confined  the  delivery 
of  the  goods  to  the  vendee' only,  but  he 
has  made  it  an  indorsable  instrument.'''' 
But  if  Renteria  v.  Ruding  be  taken  ©nly 
to  show  that  the  delivery  up  of  the  goods 
to  the  defendants  was  a  sutEcient  consi- 
deration to  support  a  promise  on  their 
part  to  pay  the.  freight,  &c.,  and  that 
such  a  promise  might  be  implied  from 
their  knowledge  that  the  goods  they 
accepted  were  subject  to-those  charges, 
the  case  will  be  distinguishable,  and 
will  be  similar  to  that  ot'  Williams  v. 
Leaper,  3  Burr.  1886,  where  the  defen- 
dant, a  broker,  being  about  to  sell  the 
goods  of  A.  for  the,  benefit^of  his  credi- 
tors, the  plaintiff,  A. 's  landlord,  came  to 
distrain  them  ;  upon  which  the  broker 
promised  to  pay  the  rent,  if  the  landlord 
would  permit  him  to  retain  and  sell  the 
goods  ;  the, consideration  Vias  held  suffi- 
VoL.  I.— 29 


cient,  and  the  pronuse  binding.  Li 
Williams  v.  Leaper,  therefore,  the  land- 
lord's relinquiiihment  of  his  lien  on  the 
goods  for  rent  was  a  sufBcient  considera- 
tion to  support  a  promise  by  a  jjarty  not 
being  the  owner  of  the  goods,  but  who 
obtained  possession  of  them  by  the  land- 
lord's relinquishment  of  his  lien,  to  pay 
the  charge  upon  them  for  rent :  and  pari 
ratione,  in  Renteria  v.  Ruding,  the  mas- 
ter's relinquishment  of  his  lien  on  the 
goods  for  freight  was  a  sufKcient  consi- 
deration to  support  a  promise  by  the 
defendants,  who  obtained  possession  of 
the  goods  by  the  captain's  relinquish- 
ment of  his  lien,  to  pay  the  charge  upon 
them  for  freight ;  and  the  passage  of 
his  work  referred  to  by  Lord  Tenterden 
shows  that'  such  a  promise  may  be  im- 
pjied  ;  and  though  Scaife  v.  Tobin,  3  B. 


&.  Ad.  523,  *(vvhich,   however. 


[*261] 


is  subsequent  to  Renteria  v. 
Ruding,)  decides  that  a  person  who  is 
not  the  owner  of  the  goods,  does  not  by 
the  mere  receipt  of  them,  with  the  know- 
ledge that  they  were  subject  to  a  charge, 
bind  himself  to  pay  it;  yet  it  is  there^ 
laid  down  by  Lord  Tenterden,  that  if 
such  a  person  receive  the  goods  in  pur- 
suance of  a  bill  of  lading  making  the 
payment  of  such  charge  a  condition  pre- 
cedent to  the  delivery  of  the  goods,  or  if 
he  had  noti.ce  from  the  master  that  if 
he  take  the  goods  he  must  take  them 
.subject  to  the  cliarge,  he  will  be  liable. 
Now  in  Renteria  v.  Ruding  the  defen- 
dants claimed  to  receive  the  goods  by" 
virtue  of  the  bill  of  lading,  which  made 
the  payment  of  freight,  &c.,  a  condition 
precedent  to  the  delivery.  And  though 
they  might  not  be  properly  speaking, 
indorsees  of  tlie  bill;  still" as  they  ex- 
hibited it,  and  claimed  to  receive  the 
goods  in  pursuance  of  it,  they  might 
fairly  be  taken  to  have  assented  to  its 
terms,  so  that  a  promise  to  pay  the 
charge  therein  imposed  might  be  im- 
plied. 

Further — although  an  instrument  may 
contain  nothing  on  the  face  of  it  incon- 
sistent with  the  character  of  negotia- 
bility, still,  if  it  be  not  accustornably, 
transferable  in  the  same  manner  as  cash, 
it  will  not  be  looked  upon  as  a.  negotia- 
ble instrument.  Thus  in  Lang  v.  {Smyth 
a  question  arising  whether  certain  in- 
struments called  bordereaux  and  cou- 
pons, which  purported  to  entitle  the 
bearer  to  portions  of  the  public  debt  of 
the  kingdom  of  Naples,  were  negotiable- 
instruments;  the  jury  Caving  fjund  that 


450 


SMITHS    LEADING    CASES. 


they  did  not  usually  pass  from  hand  to 
hand  like  money;  that  finding  was  held 
conclusive  to  show  that  they  were  not 
negotiable  instruments.  Whether  an 
instrument  which  has  never  been  so- 
lemnly recognised  by  the  law  as  nego- 
tiable be  accustomably  transferable  by 
delivery,  or  not,  is  a  question  which 
must  in  each  case  be  left  to  the  deter- 
mination of  a  jury.  It  was  submitted 
to  the  jury  in  Lang  v.  Smyth,  and  held 
to  have  been  rightly  so. 

It  seems  to  liave  been  thought  in  Lang 
V.  Smyth,  that  if  a  question  were  to  arise 
respecting  the  negotiability  of  a  foreign 
irtst-rument,  and  it  were  shown  not  to  be 
negotiable  in  the  country  where  it  was 
made,  the  tact  of  its  accustomabl}'  pass- 
ing like  cash  in  this  country  would  not 
make  it  negotiable.  "These,"  said 
Tindal,  C.  J.,  "  are  not  English  instru- 
ments recognised  by  the  law  of  England, 
but  Neapolitan  securities  brought  to  the 
notice  of  the  court  for  the  first  time,  and 
as  judges  we  are  not  allowed  to  form  an 
opinion  on  them  wiless  supplied  with 
evidence  as  to  the  law  of  the  country 
whence  they  come.  Judges  have  only 
taken  upon  themselves  to  decide  the 
nature  of  instruments  recognised  by  the 
law  of  this  country,  as  bills  of  exchange, 
which  pass  current  by  the  law  merchant, 
divided  warrants,  or  exchequer  bhlls, 
the  transfer  of  which  is  founded  on  sta- 
tutes, which  a  judge  in  an  English  court 
is  bound  to  know.  It  has  been  urged 
that  in  Gorgier  v.  Mieville,  the  case  of 
the  Prussian  bonds,  no  evidence  was 
given  of  the  foreign  law.  .  But  evidence 
was  given,  that,  by  the  usage  of  mer- 
chants in  this  country,  those  bonds  passed 
from  hand  to  hand,  ivhich  usage  could 
have  scarcely  existed  unless  they  were 
negotiable  in  Prussia,  so  that  evidence 
as  to  the  law  of  Prussia  was  rendered 
unnecessary.  And  the  question  is  not 
60  much  what  is  the  usage  in:  the  coun- 
try whence  the  instrument  comes,  as  in 
the  country  where  it  was  passed."  The 
rule  to  be  collected  from  this  seems  to 
be  that  a  foreign  instrument  is  not  nego- 
tiable here,  unless  negotiable  whererit 
was  made;  but  that  evidence  that  it  is 
accustomably  transferable  from  hand  to 
hand  in  this  country,  is  prima  facie  evi- 
dence that  it  also  is  .so  abroad.  One  class 
of  cases  in  which  the  negotiability  of  an 
instrument  becomes  important,  is  where 
a  question  arises  whether,  upon  the 
holder's  death,  it  be  subject  to  probate 
duty.     Now  as  the  ordinary's  right  to 


grant  probate  at  all  depends  on  the  lo- 
cality of  the  effects  within  his  diocese, 
it  has  been  held  that  French  rentes, 
American  stock,  and  debts  due  from  a 
foreigner,  being  transferable  abroad  only, 
must  be  considered  as  locally  situate 
abroad,  and,  consequently,  as  exempt 
from  probate  duty;  but  that  foreign  bills 
and  bonds,  given  by  the  Russian,  Dutch, 
and  Prussian  governments  accustomably 
saleable  in  the  market  here  are  chattels 
in  this  country  liable  to  probate  duty, 
although  the  dividends  upon  the  Dutch 
bonds  were  payable  solely  at  Amster- 
dam. Attorney-General  v.  Bouwens,  4 
M.  &  W.  171 ;  Attorney-General  v. 
Hope,  1  C-  M.  &  Rose.  530;  8  Bligh, 
44;  Attorney-General  v.  Dimond,  1  C. 
&.  Jerv.  JioG. 

It  has  thus  been  endeavoured  to  de- 
duce some  rules  whereby  to  ascertain 
when  a  particular  instrument  is  or  is  not 
negotiable.^  When  once  decided  to  be 
negotiable,  it  becomes,  as  has  been  al- 
ready stated  exempted  from  the  ordi- 
nary rule  respecting  chattels  personal, 
and  property  in  it  may  be  transferred  by 
a  man  who  has  none  in  it  himself,  to  a 
person  taking  it  bona  fide,  and  for  a  good 
consideration.  Grant  v.  Vaughan,  3 
Burr.  1516;  Collms  v.  Martin,  3  B.  & 
P.  649 ;  Wookey  v.  Pole,  4  B.  &  A.  1 ; 
Peacock  v.  Rhodes,  Dougl.  630.  Law- 
son  V.  \^'eston,  4  Esp.  56  ;  Snow  v.  Sad- 
dler, 3  Bingh.  610.  But  a  party  who  has 
not  taken  it  bona  fide,  and  for  good  con- 
sideration, will  not  be  permitted  to  retain 
it;  for  it  stands  on  the  same  footing  as 
nionej',  except  that  it  is  much  r^or.oi 
*more  easily  identified,  and  mo-  '-  -' 
ney  itself  could  not  be  retained  under 
those  circumstances. 

This  was  decided  in  Clarke  v.  Shee, 
Cowp.  197,  where  the  plaintiff's  clerk  re- 
ceived notes  and  moneys  for  his  master 
and  laid  them  out  with  the  defendant  in 
illegal  insurances  of  lottery-tickets; 
the  master,  being  able  to  prove  their 
identity,  was  held  entitled  to  recover 
them.  "When  money  or  notes,"  said 
Lord  Mansfield,  "  are  paid  bona  fide, 
and  upon  a  valuable  consideration,  they 
never  shall  be  brought  back  by  the  true 
owner;  but  where  they  come  mala 
fide  into  a  person's  hands,  they  are  in 
the  nature  of  specific  property ;  and  if 
their  identity  can  be  traced  and  ascer- 
tained, the  party  has  a  right  to  recover." 
Such  being  the  principle,  the  contest  in 
each  particular  case  has  ever  since  been 
whether  the  circumstances  under  which 


MILLER    V.     RACE. 


451 


the  negotiable  instrument  has  passed  to 
the  party  claiming  to  liold  it,  atTord  evi- 
dence of  mala  fides,  so  as  to  bring  the 
case  within  the  latter  part  of  the  rule 
laid  down  in  Clarke  v.  Shee,  by  Lord 
Mansfield.  Now,  it  was  very  early  held 
that  there  might  be,  on  the  part  of  a  per- 
son talking  a  negotiable  instrument,  ne- 
gligence of  such  a  description,  and  so 
gross,  as  would  afford  cogent  evidence 
of  mala  fides;  in  other  words,  as  would 
satisfy  any  reasonable  man  that  the  party 
guilty  of  it  mu:5t,  or  ought  to,  have 
suspected  that  the  dealing  in  which  he 
was  engaged  was  tainted  with  fraud. 
This  was  laid  down  in  Solomons  v.  The 
Bank  of  England,  13  East,  135.  IBut 
the  case  which  has,  perhaps,  gone  fur- 
thest on  the  subject,  is  Gill  v.  Cubitt,  3 
B.  &  C.  4G6.  That  was  an  action 
brought  upon  a  bill  drawn  by  Evered  on 
the  defendants,  and  accepted  by  them. 
On  the  2Uth  of  August,  1823,  a  letter 
containing  this  bill,  wilh  two  otliers,  was 
enclosed  in  a  parcel,  and  booked  at  the 
Green  Man  and  Still,  for  Birmingliam, 
where  the  parcel  arrived,  but  the  letter 
was  found  to  have  been  opened,  and  the 
bills  were  gone.  The  plaintiff's  nephew 
swore  that  on  the  21st  of  August,  be- 
tween 9  and  10,  ante  meridiem,  the  bill 
was  brought  to  the  office  of  the  plaintiff, 
a  bill-broker  in  London,  by  a  person 
whoso  features  were  familiar,  but  whose 
name  was  unknown  to  him,  and  who  de- 
sired the  bill  might  be  discounted  ;  but 
the  witness,  at  first,  declined  to  do  so, 
because  the  acceptors  were  not  known 
to  him :  the  person,  who  brought  the 
bill,  then  said,  that  a  fow  days  before  he 
had  brought  other  bills  to  the  ofl:ice,  and 
that,  if  inquiry  were  made,  it  would  be 
found  that  the  parties  whose  names  were 
on  this  bill  were  highly  respectable  :  he 
then  quitted  the  office,  and  left  the  bill, 
and  on  inquiry  the  witness  was  satisfied 
with  the  names  of  the  acceptors :  tlie 
stranger  returned  after  a  lapse  of  two 
hours  indorsed  the  bill  in  name  of 
Charles  Taylor,  and  received  the  full 
value  for  it,  the  usual  discount,  and  a 
commission  of  two  shillings  being  de- 
ducted :  the  witness  did  not  inquire  the 
name  of  the  person  who  brought  the  bill 
or  his  address,  or  whether  he  brouglit  it 
on  his  own  account  or  otherwise,  or  how 
he  came  by  the  bill.  It  was  the  practice 
at  the  plaintiff's  office  not  to  make  any 
inquiries  about  the  drawer  or  other  par- 
ties to  a  bill,  provided  the  acceptor  was 
good.    The  Lord  Chief  Justice  left  it  to 


the  jury  lo^e^^cr  the  plaintiff'  had  taken 
the  bill  under  circumstances  which 
ought  to  have  excited  the  suspicion  of  a 
prudent  and  careful  man.  If  tliey 
thought  he  had,  they  were  to  find  a  ver- 
dict for  the  defendant.  His  lordship 
asked  the  jury  what  they  would  think  if 
a  board  were  affixed  over  an  office  with 
this  notice,  "Bills  discounted  for  persons 
whose  features  are  known,  and  no  ques- 
tions asked."  The  jury  found  for  the 
defendant,  and  a  new  trial  being  moved 
for,  was  refused,  the  Lord  Chief  Justice 
saying,  he  agreed  that  the  case  was 
hardly  distinguishable  from  Lawson  v. 
Weston,  4  Esp.  56,  but  could  not  help 
thinking  that,  if  Lord  Kenyon  had  anti- 
cipated the  consequences,  he  would  have 
paused  before  he  pronounced  that  deci- 
sion. Bayley,  J.,  said,  "  It  is  said  that 
the  question  usually  submitted  to  the 
consideration  of  the  jury  has  been 
whether  the  bill  was  taken  bona  fide, 
and  whether  a  valuable  consideration 
was  given  for  it.  I  admit  that  has  been 
generally  the  case,  but  I  consider  it  was 
parcel  of  the  bona  fides  whether  the 
plaintiff  had  asked  all  those  questions 
which,  in  the  ordinary  and  proper  man- 
ner in  which  *Lrade  is  conduct-  r.t.2po-i 
ed,  a  party  ought  to  ask."  "  It  L  J 
is  a  question  for  the  jury,"  said  IIol- 
royd,  J.,  "  whether  a  bill  has  been  taken 
bona  fide  or  not,  and  whether  due  and 
reasonable  caution  has  been  used  by  the 
party  taking  it."  This  case  has  been 
stated  at  some  length,  because  it  has 
been  the  one  usually  most  relied  on  by 
persons  seeking'  to  invalidate  the  trans- 
fer of  a  bill,  on  tiie  ground  of  want  of 
caution  in  taking  it.  It  was  followed  by 
Snow  V.  Peacock,  3  Bing.  408 ;  Down  _ 
V.  Hailing,  4  B.  &  C.  330;  Slater  v. 
West,  Dans.  &  Lloyd,  15 ;  Beckwith  v. 
Corral],  4  Bingh.  444 ;  Strange  v.  Wig- 
ney,  G  Bingh,  677 ;  Easly  v.  Crockford, 
10  Bingh.  213;  which  last  is  a  strong 
case :  the  plaintiff  there,  who  was  rob- 
bed of  a  bank-note  for  200/.,  was  held 
entitled  to  recover  it  from  the  defen- 
dant, who  had  taken  it,  as  he  said,  in 
payment  of  a  bet  at  the  Derby,  but 
could  not  recollect  from  whom.  In  Snow 
V.  Saddler,  3  Bingh.  610,  the  court  had 
held  that  a  person  who  received  a  stolen 
30/.  note  in  payment  of  a  bet  at  Doncas- 
ter,  might  retain  it  against  the  true 
owner  ;  but  the  court  distinguished  the 
case,  on  account  of  the  larger  amount  of 
this  note.  See  further,  Burn  v.  Morris, 
4  Tyrwh.   485;  Haynes  v.   Foster,  4 


S 


452 


SMITHS     LEADING     CASES. 


Tyrwh.  66;  and  Fancourt  v.  Bull,  1 
Bingh.  N.  C.  6S1.  However,  a  disposi- 
tion has  of  late  been  manifested  to  re- 
lax the  strictness  with  wliich  the  con- 
duct of  the  person  receiving  a  bill  or 
note,  improperly  come  by,  has  hereto- 
fore been  regarded.  In  Crook  v.  Jadis, 
5  B.  &  Ad.  909,  an  acconimodation  bill 
for  lUOO^.  was  fraudulently  sold  to  How- 
ard, for  whom  the  plaintiff  discounted 
it.  In  an  action  against  the  drawer, 
Lord  Denman  left  it  to  the  jury  to  find 
for  the  plaintiff,  if  they  thouglit  he  had 
not  been  guilty  of  gross  negligence^ 
and  the  court,  on  a  motion  for  a  new 
trial,  ruled  that  that  was  the  correct 
expression.  "^I  never,"  said  Patteson, 
J.,  "  could  understand  what  was  meant 
by  a  party  taking  a  bill  under  circum- 
stances which  ought  to  have  excited  tlie 
suspicion  of  a  prudent  man."  (Vide  ta- 
men  the  observations  of  Tindal,  L.  C.  J., 
in  Vaughan  v.  Menlove,  3  Bingh.  N.  C. 
475.)  This  was  followed  by  Backhouse 
y.  Harrison,  5  B.  »&  Add.  i093  :  there 
the  plaintiff,  an  officer  of  a  banking  com- 
pany, discounted  two  discoloured  bills, 
for  '20Z.  and  261.  19s.  9d.,  for  a  man  who 
could  not  write,  and  was  not  known  in 
the  town.  The  bills  turned  out  to  have 
been  lost,  and  the  jury  found,  on  ques- 
tious  specially  submitted  to  them,  tliat 
the  plaintiff  took  the  bills  bona  fide, 
but  under  such  circumslancrs  Ihat  a' 
reasonable  cautious  man  would  nol  have 
taken  them.  They  then  found  a  verdict 
for  the  defendant,  subject  to  the  question 
whether  he  was  not  estopped  from  set- 
ting up  the  plaintiff's  negligence  as  a 
defence,  by  having  himself  committed 
the  first  negligence  in  not  advertising 
the  loss  of  the  bills.  The  court,  without 
deciding  that  point,  set  the  verdict  aside, 


on  the  ground  that  gross  negligence  had 
not  been  found  by  the  jury,  and  that  the 
evidence  was  not  siifKcient  to  warrant 
such  a  finding.  "  I  have  no  hesitation," 
said  Patteson,  J.,  "  in  saying,  that  the 
doctrine  first  laid  down  in  Gill  v.  Cubitt, 
and  acted  upon  in  other  cases,  that  a 
party,  who  takes  a  bill  under  circum- 
stances which  ought  to  have  excited  the 
suspicion  of  a  prudent  man,  cannot  re- 
cover it,  has  gone  too  far,  and  ought  to 
be  restricted.  I  -can  perfectly  under- 
stand that  a  party  who  takes  a  bill  frau- 
dulently, or  under  such  circumstances 
that  he  must  know  that  the  person  offer- 
ing it  to  him  has  no  right  to  it,  will  ac- 
quire no  title  ;  but  I  could  never  under- 
stand that  a  part}'  who  takes  a  bill  bona 
fide,  but  under  tiie  circumstances  men- 
tioned in  Gill  V.  Cubitt,  does  not  acquire 
a  property  in-it^  I  think  the  fact  found- 
by  the  jury  here,  that  the  plaintiff  took 
the  bills  bona  fide,  but  under  sucli  cir- 
cumstances that  a  reasonable  cautious 
man  would  not  have  taken  them,  was  no 
defence.  The  rule  must  be  absolute  for 
a  new  trial."  Gill  y.  Cubitt,  tiierefore, 
after  overruling  Lawson  v.  Weston,  may 
now,  perhaps,  be  itself  considered  as 
virtually  overruled.  See  the  judgment 
of  the  Court  of  Exchequer,  in  Focter  V. 
Pearson,  5  Tyrwh.  2(ili,  where  it  is  ob- 
served, that,  in  consequence  of  the'new 
rules  of  pleading-,  the  question,  when 
next  raised,  will  probably  be  raised  on 
the  record,  so  that  it  may  receive  the 
decision  of  a  court  of  error.  In  Good- 
man v.  Harvey,  4  A.  &  E.  870,  tlie 
Court  of  Queen's  Bench  ruled  that  there 
must  be  actual  mala  fides,  and  that  the 
existence  of  gross  negligence  even  was 
unimportant  except  so  far  as  it  might  be 
evidence  of  mala  fides. 


Whether  current  bank-notes,  in  the  ordinary  transactions  of  business, 
are  to  be  considered  as  cash,  has  given  rise 'to  a  diversity  of  opinion.  In 
several  cases,  it  has  been  held  that  a  delivery  of  bank-notes  cuiTent  at  the 
time  and  place  of  the  transaction,  in  payment,  or  exchange,  or  on  deposit, 
as  money,  discharges  or  creates  a  debt,  as  money  would  have  done,  and  the 
notes  are  at  the  risk  of  the  person  receiving  them,  although  the  bank  has 
stopped  payment  at  the  time,  if  that  fact  be  not  known  to  either  party; 
Bayard  v.  Shunk,  1  Watts  &  Sergeant,  92  ;  Corbit  v.  The  Bank  of  Smyrna, 
2  Harrington,  236;  Edmunds  v.  Digges,  1  C4rattan,  359.  549;  Lowrey  v. 
Murrell,  2  Porter,  280  ;  Scruggs  v.  Gass,  8  Yerger,  175  ;  Young  v.  Adams, 
6  Massachusetts,  182  ;  Phillips,  Judge,  &c.  v.  Blake,  Administrator,  1  Met- 
calf,  156,  approved  in  Whiton  v.  Old  Colony  Ins.  Co.,  2  Id.  1.  5.     But  in 


MILLER     V.     RACE. 


4&3 


other  cases,  it  Has  beep  decided,  that  notes  of  an  insolvent  bank,  or  of  one 
that  has  stopped  payment,  are  like  counterfeit  notes,  and  operate  no  dis- 
charge of  a  debt,  if  the  receiver  does  not  render  himself  chargeable  by- 
laches ;  Lightbody  v.  Ontario  Bank,  11  Wendell,  9.  18;  S.  C,  on  error, 
13  Id.  101  TThomas  v.  Todd,  G  Hill,  340;  Fowler  v.  Van  Surdam,  1  Denio, 
557.  559;  Fogg  v.  Sawyer,  9  New  Hampshire,  365  ;  Frontier  Bank  v. 
Morse,  22  Maine,  (9  Shepley,)  88.  Some  of  these  cases  take  the  distinc- 
tion b-etween  antecedent  and  present  debts,  which  is  slated  in  the  note  to 
Cumber  v.  Wane,  (supra,  p.  325-338),  in  regard  to  ordinary  promissory  notes 
of  a  third  person :  but  that  distinction  does  not  appear  to  be  applicable  in 
the  case  of  bank-notes. 

As  between  a  bank,  or  those  claiming  in  privity  with  it,  and  a  debtor  to 
the  bank,  the  notes  of  the  bank  are  cash  ;  and  payment  into  court,  or  tender, 
made  in  them,  is  as  against  the  former,  as  good  as  if  made  in  cash  ;  Nor- 
thampton Bank  v.  Balliet,  8  Watts  &  Sergeant,  311. 

It  appears  to  be  settled  in  the  American  cases,  that  the  holder  of  a  nego- 
tiable note  is,  prima  facie,  entitled,  to  recover,  upon  merely  producing  the 
note ;  but   that  if  the  plaintiff  prove   that  the  note  was  fraudulent  in  its 
inception,  or  fraudulently  put  in  circulation,  or  stolen,  or  lost,  or  obtained  by- 
duress,  there  is  thrown  upon  the  plaintifl^the  burden  of  proving  that  he  is  a 
holder  bona  fide,  and  for  a  vahmble  consideration.     Holme  v.  Karsper,  5 
Binney,  469;  Beltzhoover  v.  Blackstock,  3  Watts,  20  ;  Knight  v.  Pugh,4 
Watts  &  Sergeant,  445  ;  Brown  v.  Street,  6  Id.  221  ;  Munroe  v.  Cooper  et 
al.,  5  Pickering,  412  ;  Conroy  v.  Warren,  3  Johnson's  Cases,  259;   Wood- 
hull  V.  Holmes,  10  Johnson,  231.     See  Russel  v.  Ball,  Cook  &  Cook,  2  Id. 
50,  where  a  distinction  is  taken  by  Livingston,  J.,  between  notes  payable 
to  order  and  to  bearer.     The  particular  question  discussed  in  the  latter  part 
of  Mr.  Smith's  note,  does  not  appear  to  have  been  involved  in  these  cases. 
That  question  seems  to  be  this  :   Whether,  when  the  defendant   has  proved 
the  intervention  of  such  unfair  and  suspicious  circumstances  as  put  upon  the 
plaintiff  the  necessity  of  showing  that  he  is  a  bona  fide  holder  for  valuable 
consideration,  ivhethcr,  in  that  case,  the  plaintiff  does  not  fully  rebut  the 
presumption  of  fraud  in  his  title,  by  proving  a  valuable   consideration,  and 
thereby  put  upon  the  defendant  the  burden  of  replying  fraud  specially  in 
him;  or  whether  the  original  suspicion   still  remains,  and  the  plaintiff  is 
bound,  in  addition  to  full  consideration,  afiirmatively  to  prove  that  the  cir- 
cumstances under  which  he  bought  the  note,  were   such  as  gave  him  no 
reason  to  suspect  that  there  was  a  flaw  in  the  title  of  the  parties  preceding 
him.     The  former  doctrine,  which  is  in  effect  that  of  Backhouse  v.  Harrison, 
has  this  obvious  consideration  to  stand  upon  :  that,  prima  facie,  the  suspicion 
of  collusion  between  the  plaintiff  and  the  intermediate  parties,  remaining 
after  full  consideration  is  proved,  is  certainly  not  stronger  than  the  suspicion 
which  must  always  exist,  of  collusion  between  the  defendant  and  those  per- 
sons in  letting  the  note  get  into  circulation.     In  Dickson  et  al.  v.  Primrose 
et  al.,  2  Miles,  366,  it  is  said  that  the  plaintiff  must  prove  he  gave  full  con- 
sideration, "  and  in  some  cases  he  must  even  show,  that  he  took  it  without 
any  circumstances  of  suspicion,  or  his  ownership  will  not   be   held  bona 
fides."     But  in  a  later  case  that  court  adopted  the  principle  of  Backhouse 
V.  Harrison,  and  decided  that  the  defendant  must  prove  fraud.     But,  ia 


454  smith's   leading   cases. 

Vermont,  the  recent  case  of  Sandford  v.  Norton,  H-Vermont,  228.  233, 
inclines  to  the  doctrine  of  Gill  v.  Cubitt. 

H.  B.  W. 


[    *264    ]  *ASLIN  V.  PARKIN. 


MICH.— 32  GEO.  2. 
[reported  2  BIRR.  665.] 

After  a  judgment  by  default  against  the  casual  ejector,  trespass  for  mesne  profits  may  be 
brought  cither  in  the  name  of  the  tietitious  plaintiff',  or  in  that  of  his  lessor. 

In  such  an  action  the  judgment  in  ejectment  is  evidence  of  the  plaintiff's  title  and  pos- 
session from  the  date  of  the  demise  in  the  declaration  in  ejectment. 

The  costs  of  the  ejectment  may  be  recovered  as  damages. 

This  was  an  action  of  trespass,  for  the  mesne  profits  of  a  house  in  Shef- 
field, in  Yorkshire,  brought  in  the  name  of  the  lessee  or  nominal  plaintiff  in 
'ejectment,  against  the  tenant  in  possession,  after  judgment  obtained  against 
the  casual  ejector,  by  default.  The  costs  of  the  ejectment  were  also  includ- 
ed and  inserted  in  the  declaration,  as  consequential  damages  of  the  trespass 
therein  complained  of. 

On  the  trial  of  this  cause  before  Lord  Mansfield,  at  the  summer  assizes, 
1758,-at  the  city  of  York,  the  plaintiff  gave  in  evidence  t-he  3.udgment  in 
ejectment,  the  writ  of  possession  with  the  return  of  execution  upon  it,  the 
defendant's  occupation  of  the  premises,  the  value  of  them  during  that  time 
(which  was  proved  to  be  20/.)  and  the  costs  of  the  ejectment  (amounting  to 
12/.  more). 

On  the  part  of  the  defendant  it  was  objected,  that  as  the  judgment  in  the 
ejectment  w^as  by  default,  against  the  casiial  ejector,  this  action  could  not 
be  legally  maintained  in  the  name  of  the  nominal  plaintiff;  but  ought  to- 
have  been  brought  by  the  plaintiff's  lessor  ;  and  they  ought  to  have  proved 
the  plaintiff  to  have  been  in  possession  when  the  defendant  committed  the 
trespass  for  which  the  action  is  brought. 

'_  -,  *In. support  of  this  objection,  it  was  argued,  that  though  the  law 
L  •  J  allows  fictitious  proceedings  in  ejectment,  for  the  trying  of  lilies  ; 
yet  in  actions  for  rriesne  profits  no  such-  fiction  prevails  ;  but  the  suit,  the 
injury,  and  ihe  defendant  are  real  :  and  the  action  in  no  respect  differs  from 
any  action  of  trespass. 

That  this  was  a  possessory  action  ;  which  could  in  no  case  be  main- 
tained, unless  the  plaintiff's  possession  was  either  proved  or  admitted  ;  and 
as,  in  the  present  case,  tlie  plaintiff  could  not  possibly  prove  an  actual  entry, 
there  was  no  evidence  of  his  possession,  that  could  affect,  or  be  received 
against,  the  present  defendant. 

It  was  admitted,  that  an  action  of  this  kind  might  be  brought  in  the 
name  of  the  nominal  plaintiff  in  ejectment,  where  the  tenant  had  appeared 


ASLIN    V.     PARKIN.  455 

and  cgnfessed  lease,  entry,  and  ouster ;  because  being-  thereby  become  a 
party  to  the  record  in  ejectment,  and  having  confessed  the  entry  of  the 
plaintiff,  he  is  estopped  by  that  confession,  and  by  the  judgment  against 
him,  from  controverting  afterwards  the  plaintiff's  possession  ;  but  where 
the  judgment  in  ejectment  was  by  default,  against  the  casual  ejector,  there 
was  no  such'confession  of  the  tenant,  no  matter  of  record  to  estop  him;  ,but 
he  was  equally  at  liberty  to  deny  the. plaintiff's  possession,  and  to  put  him 
upon  proving  it,  as  in  any  other  action  of  trespass  ;  and.'having  never  been 
a  party  to  the  judgment  in  ejectment,  neither  that  judgment  nor  the  writ  of 
possession  upon  it,  (as  they  were  merely  between  the  nominal  plaintiff  and 
a  third  person,  the  casual  ejector,)  could  be  any  conclusion  or  evidence 
against  the  present  defendant. 

It  was  therefore  insisted^  that  this  action  ought  to  have  been  brought  by 
the  lessor  of  the  plaintiff,  in  his  own  name ;  who  might  have  proved  an 
actual  entry  under  the  writ  of  possession  ;  and  by  that  entry,  the  possession 
he  thereby  obtained  would  relate  back  to  the  commencement  of  his  title ; 
but  being  brought  in  the  name  of  the  nominal  plaintiff,  and  the  defendant 
being  a  stranger  to  the  judgii^ent  in  ejectment,  the  plaintiff  had  failed  of 
maintaining  his  action. 

In  support  of  this  objection,  the  defendant's  counsel  urged,  that,  although 
the  distinction  was  carried  no  farther,  in  the  case  of  Je/Feries  v.  Dyson,  (2 
Strange,  960,  H.  7  G.  2,  *B.  ,R.)  than  to  admit  the  tenant  in  pos-  r-#ofifii 
session  (where  the  judgment  was  against  the  casual  ejector,  by  L  ■• 
defiiult,)  to  controvert  the  title  of  the  plaintiff,  upon  an  action  for  the  mesne 
profits,  yet  both  parts  of  that  case  had  been  since  contradicted  ;  and  it  had 
been  since  holden,  "  that  the  defendant  should  not  controvert  the  plaintiff's 
title  ;"  but  (where  the  tenant  had  not-  entered  into  the  common  rule)  "the 
plaintiff  must  prove  his  own  actual  possession  ;  and  can  only  recover 
damages  from  that  time."  For  this,  they  cited  a  case  of  Stanynought  v. 
Cousins,  H.  19  G.  2,  C.  B,  (2  Barnes,  367,)  and  some  circuit  traditions  of 
nonsuits  for  want  of  the  plaintiff's  proving  his  possession,  where  the  judg- 
ment .was  by  default  against  the  casual  ejector. 

Lord  Mansfield  reserved  the  point,  at  the  assizes  ;  and  afterwards  pro- 
posed it  to  all  the  Judges,  and  had  .their  opinion  ;  which  he  thought  fit  now 
publicly  and  particularly  to  declare. 

Upon  principles  his  lordship  said,  he  was  clearly  of  opinion  against  the 
objection  on  the  trial,  without  hearing  the  counsel  for  the  plaintiff.  But  as 
authorities  were  then  referred  to,  and  as  the  point  related  to  the  effect  of 
that  proceeding  which  is  now  almost  the  only  remedy,  in  practice,  for 
recovering  land  wrongfuUy'withheld  ;  he  thought  it  of  great  consequence 
that  the  matter  should  be  considered  by  all  the  Judges.  He  therefore 
reserved  the  case,  declaring  "  he  did  it  with  that  view  ;  and  that  he 
would  endeavour  to  get  their  opinion  without  any  delay  or  expense  to  the 
parties." 

Accordingly  his  lordship  laid  it  before  them  upon  the  first  day  of  term  ; 
and  they  took  till-  last  Thursday,  the  16th  of  November,  to  look  into  the 
cases,  so  for  as  they  could,  with  any  accuracy,  be  traced.  And  besides  those 
that  are  in  print,  they  had  seen  some  in  manuscript,  different  ways  ;  which 
were  now,  he  said,  totally  immaterial  to  be  mentioned  : 

Because  all  the  Judges  are  unanimously  of  opinion  "that  the  nominal 


456  smith's  leading  cases. 

plaintilf,  and  the  casual  ejector,  are  judicially  to  be  considered  as  the 
fictitious  form  of  an  action  really  brought  by  the  lessor  of  tlie  plaintifTagainst 
the  tenant  in  possession  ;  invented  under  thq  control  and  power  of  the  court, 
for  the  advancement  of  justice  in  many  respects ';  and  to  force  the  parties 
rjijop-y-i  to  go  to  trial  on  the  *merits,  without  being  entangled  in  the  nicety 
•-         -'of  pleadings  on  either  side." 

"  That  the  lessor  of  the  plaintiff,  and  the  tenant  in  possession,  are  sub- 
stantially, and  in  truth,  the  parties,  and  the  only  parties  to  the  suit.  The 
tenant  in  possession  must  be  duly  served  ;  and  if  he  is  not,  he  has  a  right 
to  set  aside  the  judgment.  If,  after  he  is  duly  served,  he  does  not  appear, 
but  lets  judgment  go  by  default,  such  judgment  is  carried  into  execution 
against  him  by  a  writ  of  possession." 

"That  there  is  no  distinction  between  a  judgment  in  ejectment  upon 
a  verdict,  and  a  judgment  by  default.  In  the  first  case  the  right  of  the 
plaintiff  is  tried  and  determined  against  the  defendant ;  in  the  last  case,  it 
is  confessed." 

"An  action  for  the  mesne  profits  is  consequential  to  the  recovery  in 
ejectment.  It  may  be  brought  by  the  lessor  of  the  plaintiff  in  his  own 
name,  or  in  the  name  of  the  nominal  lessee  ;  and  in  either  shape  it  is  equally 
Lis  action." 

"The  tenant  is  concluded  by  the  judgment,  and  cannot  controvert  the 
title.  Consequently  he  cannot  controvert  the  plaintiff's  possession  ;  because 
his  possession  is  part  of  his  title  ;  for  the  plaintiff',  to  entitle  himself  to 
recover  in  an  ejectment,  must  show  a  possessory  right  not  barred  by  the 
statute  of  limitations." 

"  This  judgment,  like  all  others,  only  concludes  the  parties,  as  to  the 
subject-matter  of  it.  Therefore,  beyond  the  time  laid  in  the  demise,  it 
proves  nothing  at  all;  because  beyoivd  that  time,  the  plaintiff  has  alleged 
no  title,  nor  could  be  put  to  prove  any." 

"  As  to  the  length  of  time  the  tenant  has  occupied,  the  judgm~ent  proves 
nothing;  nor  as  to  the  value.  And,  therefore,  it  was  proved,  in  this  case, 
(and  naust  be  in  all)  how  long  the  defendant  enjoyed  the  premises;  and 
what  the  value  was  ;  and  it  appeared  that  the  time  of  such  occupation  by 
the  defendant  was  within  the  time  laid  in  the  demise." 

This  unanimous  resolution  of  all  the  Judges,  upon  short  plain  principles, 
will  not  only  be  a  certain  and  uniform  rule,  upon  actions  for  mesne  profits  ; 
but  may  tend  to  put  this  fictitious  remedy  by  ejectment  upon  a  true  and 
liberal  foundation  ;  to  attain  speedily  and  effectually  the  complete  ends  of 
justice,  according  to  the  real  merits  of  the  case. , 

_  *My  brother  Wilmot  tells  me,  that  he  had  the  very  same  ques- 

L  ^  J  tion  made  before  him,  upon  the  Oxford  circuit,  the  last  assizes  ;  but 
the  cause  went  off  upon  another  point. 

I  am  therefore  glad  that  the  general  rule  is  now  settled  ;  and  that  the 
settling  it  has  occasioned  no  expense  or  delay  to  the  particular  parties  in 
.this  cause. 

The  rule  consequently  was,  that  the  postea  be  delivered  to  the  plaintiff,- 
that  he  might  have  judgment. 


A  S  L  I  N    V.     PARKIN. 


45'2:, 


.  See  Goodtitle  v.  Tombs,  3  WiTs.  118. 
AltliQugh  Aslin  v.  Parkin  decides  that 
trespass  for  mesne  profits  may  be 
brouglit,  after  a  judgment  by  default,  in 
the  name  of  the  fictitious  plaintiff,  still, 
if  it  be  sought  to  recover  profits  antece- 
dent to  the  day  of  the  demise  laid  in 
the  previous  ejectment,  the  action  shall 
be  brought  in  the  name  of  the  real  plain- 
tiff, for  the  title  of  the  fictitious  plaintiff 
exists,  of  course,  only  in  the  proceedings 
in  ejectment,  from  which  it  appears  to 
have  commenced  with  the  demise  there 
laid.  [Dictum  S.  P.  Osbourne  v.  Os- 
bourne,  11  Sergeant  &  Rawle,  55.  58.] 
So  if  the  action  be  brought  against  an 
occupier  antecedent  to  the  ejectment, 
for  as  to  him  the  record  of  the  ejectment 
is  no  evidence.  Decosta  v.  Atkins,  B. 
N.  P.  87.  See  Hunter  v.  Britts,  3 
Camp.  456;  [Chirac  v.  Reinecker,  11 
Wheaton,  2S0  ;  2  Peters,  613;  Reid  v. 
Stanley,  6  Watts  &  Sergeant,  3G9. 375 ,] 
Denn  v.  White,  7  T.  R.  112  [The 
judgment  in  ejectment  is  conclusive  of 
the  title  from  the  time  of  the  demise  laid, 
or,  where  the  old  form  is  abolished,  from 
the  time  of  the  writ  issued  :  if  the  plain- 
tiff claims  beyond  that  time,  as  to  such 
time  the  defendant  may  controvert  the 
title.  Van  Alen  v.  Rogers,  1  Johnson's 
Cases,  281;, Jackson  v.  Randall,  11 
Johnson,  405  ;  Doe  v.  Dupuy,  4  J.  J. 
Marshall,  383;  Hylton  v.  Brown,  2 
Washington  C.  C.  165 ;  Shotwell  vi 
Boehm,  1  Dallas,  172  ;  Huston  v.  Wick- 
ersham,  2  Watts  &  Sergeant,  308 ; 
Postens  v.  Postens,  3  id.  182  ;  Man  v. 
Dr«xel,  2  Barr,  202  ;  Drexel  v.  Man,  id. 
■271.  in  West  v.  Hughes,  1  Harris  & 
Johnson,  574,  it  \vas  held,  that  though 
the  defendant  might  controvert  the  plain- 
tift^'s  title  before  the  time  laid  m  the  de- 
mise, yet  for  the  time  between  the  de- 
mise laid,  and  the  execution  of  the  habere 
facias,  the  defendant  in  the  ejectment 
was  liable,  whoever  was  in  possession, 
unless  the  profits  came  to  the  plaintiff.] 
Nor  will  it  be  evidence  in  trespass  for 
mesne  profits  against  a  person  who  en- 
tered subsequenlly  to  the  ejectment, 
unless  it  be  proved  that  be  came  in  un- 
der the  defendant  in  ejectment,  so  as  to 
make- him  privy  to  the  judgment.  Doe 
V.  Harvey,  8  Bing.  242.  But  if  he  came 
in  under  the  defendant  in  ejectment,  it. 
■will  be  evidence.  Doe  v.  Whitcombe,  8 
Bing.  46.  [S.  P.  Jackson  v.  ^tone,  13 
Johnson,  447;"  Morgan  v.  Varick,  8 
Wendell,  587:  ai\d  though  the  plaintiff 
after  the  recovery  in  ejectment,  convey 


the  land  to  the  defendant,  he  may  still 
maintain  trespass  for  mesnse  profits,  for 
the  tort  remains.  Fenn,  d.  of  Duffield 
V.  Stille,  1  Yeates,  1-54  :  2  Dallas,  156, 
S,  C.  The  record  of  the  recovery  in 
ejectment  is  evidence  only  against  par- 
ties and  privies,  and  not  against  stran- 
gers;  Leiand  v.  Tousey,  6  lIill,32S.] 

It  is  stated  in  Aslin  v.  Parkin,  that 
"  the  tenant  is  concluded  by  the  judg- 
ment, and  cannot  controvert  the  title  ;" 
and  this  was  long  considered  in  practice 
as  lilerally  true,  although  Voosht  v. 
Winch,  2  B.  &  A.  662 ;  Outram  v.^More- 
wood,  3  East,  365 ;  Stafford  v.  Clarke,  2 
Bing.  3S1 ;  Hooper  v.  Hooper  M'Clell.  & 
Young,  509 ;  Wilson  v.  Butler,  4  Bing. 
N.  C.  756;  and  Bowman  v.  Rostrora, 
2  Ad.  &  Ell.  295,  show  clearly  that  a 
judgment  is,  generally  speaking,  no  es- 
toppel, unless  pleaded  as  such,  where 
there  bas  been  an  opportunity  of  doing 
so,  see  post,  vol.  2.  However,  it  has 
been  lately  decided  that  there  is  now  no 
difference  in  that  respect  between  a 
judgment  in  ejectment  and  one  in  any 
other  action.  Doe  v.  Huddart,  2  C.  M. 
&  Rose.  316;  5  Tyrwh.  846.  That  it 
operates  as  an  estoppel  when  pleaded 
as  such,  was  decided  in  Doe  v.  Wright, 
2  P.  &  Dav.  672.  See  post,  vol.  2,  note 
to  Duchess  of  Kingston's  case.  [See 
Man  V.  Drexel,  2  Barr,  202.  204.] 

["  The  right  to  mesne  profits  is  a  ne- 
cessary consequence  of  a  recovery  in 
ejectment ;  and  the  defendant  could  not 
set  up  a  title  in  bar,  even  if  he  clearly 
had  a  better  title  ;"  Benson  and  others 
V.  Matsdorf,^2  Johnson,  369;  Jackson  v, 
Randall,  11  id.  405;  Van  Alen  v.  Ro- 
gers; Lloyd  V.  Noiir.se  and  wife,  2 
Rawle,  49:  and  this  is  equally  the  case 
where  the  judgment  in  .ejectment  has 
gone  by  default:  Baron  v.  Abeel,  3 
Johnson,  481  ;  Langendyck  and  wife  v, 
Burhans,  11  id.  461  ; — in  fact,  the  judg- 
ment in  Ejectment  has  just  the  same 
effect  as  other  judgments;  Chirac  v. 
Reinecker.  But  there  is  this  differ- 
ence, as  respects  the  action  for  mesne 
profits,  between  the  case  where  the 
judgment  in  ejectment  has  gone  by  de- 
fault against  the  casual  ejector,  and 
where  it  has  been  given  after  the  con- 
sent-rule has  been  entered  into,  that,  as 
trespass  is  an  action  brought  for  an  in- 
jury to  the  possession,  it  cannot  be  main-  ^ 
taincd  by  one  who  is  disseised,  or  out  of 
possession,  until  he  has  revested  his  pos- 
session by  entry,  which  entry  relates 
back  to  the  time  of  the  right  accrued. 


458 


SMITHS    LEADING    CASES. 


or,  more  correctly  speaking-,  converts 
the  orig-inal  disseisin  into  a  trespass;- 
Harker  v.  Whitaker,  5  Watts,  474.  476 ; 
Reitl  V.  Stanley,  6  Watts  &, Sergeant, 
369.  376 ;  Dewey  v.  Osbourne,  4  Coweh, 
329;  Morgan  v.  Varick,  8  Wendell, 
587;  Cox  et  al.  Callender,  9  Massachu- 
setts, 533  :  Acordino-ly,  as  the  consent- 
rule  confesses  entry,  judgment,  after  that, 
is  sufficient,  alone,  to  sustain  trespass  ; 
but  on  judgment  by  default  against  the 
casual  ejector,  there  must  be  an  entry, 
or  a  delivery  of  possession  by  writ,  be- 
fore trespass  can  be  brought.  Lessee  of 
Brown  v.  Galloway,  1  Peters's  C.  C. 
291  ;  Jackson  v.  Combs,  7  Cowen,  36.] 

In  one  case,  the  action  of  trespass  for 
mesne  profits  is  rendered  unnecessary 
by  statute  1  G.  4,  c.  87,  s.  2.  When, 
in  ejectment  brought  by  landlord  against 
tenant,  the  tenant  or  his  attorney  has 
been  served  with  due  notice  of  trial,  the 
plaintiti'will  not  be  non-suited,  in  case  of 
the  tenant's  non-appearance.  And  whe- 
ther the  tenant  appear  or  no,  the  plain- 
titF,  after  proving  his  title,  may  go  on 
to  prove  the  mesne  profits  down  to  the 
day  of  the  verdict,  or  some  preceding 
day  to  be  specially  mentioned  therein, 
and  will  recover  the  land,  together  with 
the  mesne  profits  as  damages  ;  and  it  is 
provided  that  this  shall  not  bar  the  land- 
lord from  bringing  trespass  for  the  mesne 
profits  which  shall  accrue  from  the 
verdict,  or  the  day  specified  therein, 
down  to  the  day  of  delivery  of  posses- 
sion of  the  premises  recovered  in  the 
ejectment. 

'In  Aslin  v.  Parkin,  the  costs  of  the 
previous  ejectment,  (where  judgment, 
as  will  be  remembered,  went  by  default) 
were  included  in  the  declaration  in  the 
action  of  trespass  for  mesne  profits  as 
special  damage.  See  Doe  v.  Davis,  1 
Esp.  3.58;  Brooke  v.  Bridges,  7  B.  M. 
471.  In  No  well  v.  Roake,  7  B.  &  C. 
404,  an  ejectment  was  brought  in  the 
Common  Pleas,  and  judgment  given  for 
the  defendent,  which  was  reversed  on 
error.  The  plaintifi^'  brought  trespass 
for  mesne  profits  in  the  King's  Bench, 
and  recovered  the  costs  in  error,  as  be- 
tween attorney  and  client,  although  the 
Court  of  Error  itself  could  not  have 
given  costs ;  Bell  v.  Potts,  5  East,  49 ; 
Wyrie  v.  Stapleton,  Str.  615.  If  the 
ejectment  was  defended,  the  taxed  costs 
are  recoverable  as  damages  in  this  ac- 
tion ;  *Doe  V.  Davis,  Symonds  v. 


[*269] 


Page,  1  O.  &.  J.  29;  but  no  ex- 


tra costs  are  so.     Doe  v.  Davis,  1  Esp. 


3.58;  Brooke  v..Bri<lge3i  7  B.  M.  471 ; 
Doe  V.  Hare,  2  Dowl.  P.  C.  i24o.  [Doe 
V.  Fill  iter,  13  M.  &  W.  47.]      . 

In  estimating  the  damages,  the  jury 
are  also  allowed  to  take  into  considera- 
tion the  trouble  and  inconvenience  sus- 
tained by  the  'plaintifi^",  in  consecjnence 
of  the  defendant's  trespasses,  over  and 
above  the  mere  rent  of  the  premises,  so 
as  completely  to  compensate  him  for 
the  injury  he  has  sustained.  Goodtitle 
V.  Tombs,  3  Wils.  121.  This  action 
could  not  formerly  have  been  brought 
against,  or  by,  an  executor,  or  adminis- 
trator, the  rule  actio  personalis,  moritur 
cum  persona  being  applicable  to  it.  But 
by  3  &  4  W.  4,  c.  42,  s.  3,  it  now  may, 
provided  it  be  brought  within  six  months 
after  the  defendant  shall  have  taken  ad- 
ministration on  himself,  and  provided 
the  trespasses  were  committed  within 
six  months  before  the  death  of  the  tres- 
passer; and  by  the  same  section  it  may 
be  brought  by  an  executor,  provided  the 
trespasses  wore  committed  within  six 
months  before  the  death,  and  the  action 
be  commenced  within  a  year  after  the 
death.  By  the  same  statute,  money  may 
be  paid  into  court,  in  such  an  action,  un- 
der a  Judge's  warrant. 

[In  Denn  v.  Chubb,  1  Coxe,  466,  the 
assessment  of  mesne  profits,  (which 
were  there  recovered  in  ejectment  from 
the  time  of  demise  laid)  was  allow- 
ed to  include  all  the  plaintift''s  reasona- 
able  and  necessary  expenses,  taking  ia 
counsel  fees  ;  and  in  Baron  v.  Abeel,  3 
Johnson,  431,  the  costs  of  the  previous 
ejectment.  In  Maryland,  the  measure 
of  damages  is  the  rent ;  torts  done  to  the 
property  being  .  properly  remediable  in 
a  separate  action  of  trespass ;  Gill  v. 
Cole,  1  Harris  &  Johnson,  403:  else- 
where,- the  plaintiff  is  not  limited  to  this, 
but  may  recover  beyond  the  rent;  Dew- 
ey V.  Osborne  ;  and  for  all  actual  dam- 
age ;  Houston  v.  Wickershain.  As  to 
the  general  measure  of  the  damages,  in 
Lessee  of  Brown  v.  Galloway,  Judge 
Washington  said,  that  there  is  no  gen- 
eral rule,  but  the  jury  will  decide  from 
all  the  circumstances;  and  in  Murray 
V.  Governeur,  2  Johnson's  Cases,  43S,  it 
was  said  that  trespass  lor  mesne  profits 
"  is  a  liberal  and  equitable  action,  and 
will  allow  of  every  kind  of  equitable 
defence."  See  the  principle  of  equity 
strikingly  applied  in  Ewalt  y.  Gray,  6 
Watts,  427.  The  tjuestion  of  compen- 
sation for  improvements  is  one  of  con- 
siderable interest,  inasmuch  as  there  is  a 


A  S  L  I  N    V.     PARKIN. 


459 


conflict  between  the  civil  and  common 
law  on  the  subject.  The  following- 
points  seem  to  be  settled.  In  the  action 
for  mesne  profits,  the  value  that  repairs 
or  improvements  are  to  the  plaintiff, 
may  be  set  ofT",  to  the  extent  of  the  plain- 
tiff'^ s  claim  for  mesne  prof  Is,  if  the  de- 
fendant was  an  innocent,  bona  fide  pos- 
sessor, and  not  otlierwise:  Green  v. 
Biddle,  8  Wheaton,  1,  where  the  subject 
is  ably  considered  by  VVa.shington,  J. ; 
and  sec  Ilylton  v.  Brown,  Murray  v. 
Gouvorneur  et  al. ;  Frear  v.  Harden- 
bergh,  5  Johnson,  272;  Jackson  v. 
Loomis,  4  Cowen,  168 ;  Marie  v.  Sem- 
ple,  Addison,  215  ;  Huston  v.  Wicker- 
sham  ;  Dowd  V.  Fawcett,  4  Devereux, 
92 :  But  beyond  this,  at  law,  compensa- 
tion is  not  recoverable  for  improvements, 
if,the  occupancy  were  under  a  void  title  ; 
Green  v.  Biddle;  see  M'Kee  v.  Lam- 
berton,  2  Watts  &  Sergeant,  107  ;  Jack- 
son v.  Loomis  :  And  equity  interferes  to 
clog  a  recovery  with  conditions  of  com- 
pensation only,  1,  where  there  is  fraud, 
and,  2,  whore  the  claimant's  title  is 
only  equitable,  and  being  obliged  to  ask 
the  aid  of  equity,  he  will  be  compelled 
to  do  equity  to  tlie  occupant.  See 
Werkheiser  v.  Werkheiser  and  others, 
3  Rawle,  826.  334.  See  the  whole 
subject  in  Green  v.  Biddle ;  South- 
all  V.  M'Keand  et  al.,  1  Washington, 
336;  Piigh's  Heirs  v.  Bell's  Heirs, 
1  J.  J.  Marshall,  390;  Putnam  v. 
Ritchie,  6  Paige,  390  ;  Bright  v.  Boyd, 
1  Story,  478.  In  the  last  case,  in  equity. 
Story,  J.,  -inclined  to  adopt  the  civil 
law  principle  further,  and  perhaps  to  its 
full  extent,  and  to  compel  compensation 
far  valuable  improvements,  where  the 
occupant  had  held  "  under  a  title  which 
turns  out  to  be  defective,  he  having  no 
notice  of  the  defect;"  but  the  numerous 
extracts  from  digests  of  Scotch  and 
Roman  law  which  are  relied  on  for  that 
opinion,  furnish  no  answer  to  the  obser- 
vation of  Wa.shington  J.,  in  Green  v. 
Biddle,  that  to  clog  the  owner's  recove- 
ry of  his  land  with  the  necessity  of  pay- 
ing before  he  gets  it,  is  to  take  from  a 
man  the  enjoyment  of  his  legal  property 
without  any  act  or  default  on  his  part; 
which  is  against  all  reason  and  justice. 
The  land  and  the  improvements  have 
become  inseparable  by  the  act  of  the 
improver :  the  equity  of  the  owner  to 
have  his  land  is  at  least  as  clear  as  the 
equity  of  the  other  to  have  the  value  of 
his  improvements  ;  and  the  former  has 
the  legal  title  to  both.     There  cannot 


be  presumed  entire  ignorance  of  the  de- 
fect, where  there  is  a  better  legal  title 
outstanding;  for  an  occupant  is  bound, 
both  in  law  and  equity,  to  know  all  legal 
defects  in  his  title.  See  Collins  & 
others  v.  Rush,  7  S.  &  R.  147  ;  Allen 
v.  Flock,  2  Penrose  &  Watts,  l.^O;  and 
the  remarks  of  Kennedy,  J.,  in  Coney 
V.  Owen,  6  Watts,  435.  444,  on  the 
equity  of  improving  men  out  of  their 
rights;  and  Folk  v.  Beidleman,  id. 
339 ;  and  Lewis  v.  Bradford,  10  id. 
67.  81.] 

When  the  action  is  brought,  as  in  As- 
lin  v.  Parkin,  in  the  name  of  a  factitious 
plaintiff,  the  court  will  stay'proceedings, 
until  security  be  given  for  the  defend- 
ant's costs,  otherwise  he  would  have  no 
means  of  recovering  them  :  B.  N.  P.  89. 
[S.  P.  Jackson  v.  Peer,  4  Cowen.  147.] 

It  is  remarked  in  Aslin  v.  Parkin,  that 
as  to  the  length  of  time  the  defendant 
has  been  in  possession,  the  judgment  in 
ejectment  proves  nothing;  the  consent 
rule,  however,  where  there  is  one,  may 
be  put  in,  and  will  show  the  defendant 
to  have  been  in  pcssession  at  the  time 
of  the  service  of  the  declaration  in  eject- 
ment. Doe  v.  Gibbs,  2  C.  &  P.  615. 
[Jackson  v.  Combs,  7  (/Owen,  36.] 

One  consequence  of  the  plaintiff  in 
ejectment  being  a  fictitious  person,  is, 
that  an  ejectment  may  be  brought  on 
the  demise  of  one  partner  against  the 
firm  ;  for  the  plain tifi'  being  Jolin  Doe, 
and  not  his  lessor,  the  ordinary  rule  that 
the  same  person  cannot  at  once  be 
plaintiff  and  defendant,  docs  not  apply. 
Francis  v.  Doe,  4  M.  &  W.  331. 

[It  was  ruled  by  Judge  Washington,. 
that,  by'giving  notice,  the  plaintiff  may 
always  recover  the  value  of  the  mesne 
profits  in  the  ejectment;  Lessee  of  Bat- 
tin  v.  Bigelow,  1  Peters's  C.  C.  452; 
and  that  where  the  plaintiff's  title  has 
expired  before  trial,  he  may  proceed 
for  damages  for  the  trespass  and  for 
mesne  profits;  Lessee  of  Brown  v.  Gal- 
loway, id.  292;  but  probably  in  the  lat- 
ter case  also,  notice  should  be  given  ; 
else,  the  practice  would  be  to  enter 
judgment  for  nominal  damages  and  full 
costs  ;  Murray  v.  Garretson,  4  Sergeant 
&  Rawle,  130;  or  to  enter  the  regular 
judgment,  with  perpetual  stay  of  the 
writ  of  possession  ;  Jackson  v.  Daven- 
port, 18  Johnson,  295,  and  to  leave  the 
plaintiff  to  his  action  of  trespass  there- 
upon. In  like  manner,  in  Pennsylvania, 
if  notice  be  given.  Cook  v.  Nicholas,  2 
Watts  &    Sergeant,    27,   the  plaintiff 


460 


smith's   leading   cases. 


may  recover  for  mesne  profits  down  to 
the  lime  of  the  judo-ment ;  Dawson  v. 
M'Gill,  4  Wharton,  230 :  but  the  remarks 
of  Huston,  J.,  in  Huston  v.  Wiclversliam, 
questioning  the  regularity  of  this  prac- 
tice, certainly  have  force,  and  point  to 
the  pi'opriety  of  requiring  the  claim  to 
mesne  profits  to  be  suggested  of  i-ecord, 
and  notice  of  it  to  be  endorsed  upon  the 
declaration  or  writ.  In  New  Jersey  and 
Connecticut,  Denn  v.  Chubb,  1  Coxe,  4 
46,  Starr  v.  Pease,  8  Connecticut,  541, 
the  same  practice  is  allowed  ;  but  in  the 
latter,  damages  are  recoverable  only 
down  to  the  issuing  of  the  writ.  In  Ver- 
mont, by  statute  damages  are  recovered 
with  the  possession  in  lieu  of  mesne 
profits ;  but  no  damages  are  recovered 
unless  the  possession  is  ;  i.  e.  unless  the 
title  continues  to  the  time  of  judgment. 
See  Burton  v.  Austin  &l  Blake,  4  Ver- 
mont, 105 ;  Smith  v,  Benson,  9  id.  105. 


In  New  York,  the  action  of  trespass  for 
mesne  profits,  is  abolished  by  2  R.  S. 
310,  s.  43,  44:  and  the  plaintiff  recov- 
ers by  suggesting  his  claim  on  the  re- 
cord of  the  judgment  in  ejectment,  with- 
in one  year:  See  Jackson  v.  Leonard,  6 
Wendell,  534  ;  Broughton  v.  Welling- 
ton, 10  id.  506  ;  and  the  plaintiff  is  pre- 
vented by  the  statute  from  recovering 
mesne  profits  for  more  than  six  years, 
and  the  defendant  need  not  plead  tlws 
statute  of  limitations.  Jackson  v.  Wood, 
24  id.  443.  But  this  statute  abolishing 
trespass  for  mesne  profits,  applies  only 
to' such  mesne  profits  the  right  to  which 
results  legally  from  tiie  recovery  in 
ejectment ;  and  therefore  only  to  cases 
where  the  claim  for  mesne  profits  is 
against  the  same  persons  who  were  de- 
fendants in  the  ejectment ;  Leland  v 
Tousey,  6  Hill,  328.1 

II.  B.  W. 


[*270] 


*CARTER  V.  BOEHM. 


EASTER— 5  G.  3.- 
[rEPOKTED    3   BURR.    1905.] 

Insurance  on  Fort  Marlborough  against  foreign  capture,  effected  by  its  Governor. 
The  weaknesa  of  the  fort,  and  the  probiibility  of  its  being  taken  by  the  Fi-cnch,  and 
that  the  insured  knew  tliese  facts,  but  Iiad  not  communicated  them,  were  otFcred 
to  be  proved  as  a  defence  to  an  action  on  the  policy.  It  was  also  objected  that 
the  insurance  "was  against  public  policy.  The  plaintiff  proved  that  tlie  office  of 
Governor  was  mercantile,  not  military  ;  and'  that  the  fort  was  never  calculated  to 
resist  Europedn  enemies.  Held,  that  the  jury  were  justified  in  finding  for  the 
plaintiff. 

The  opinion  of  an  insurance  broker  as  to  the  materiality  of  the  facts  not  communicated, 
was  thought  inadmissible  as  evidence. 

What  concealments  vitiate  a  poliey. 

This  was  an  insurance  cause,  upon  a  policy  underwritten  by  Mr.  Charles 
Boehm,  of  interest,  or  no  interest ;  without  benefit  of  salvage. (f)  The 
insurance  was  made  by  the  plaintiff,  for  the  benefit  of  his  brother,  Governor 
George  Carter. 

It  was  tried  before  Lord  Mansfield,  at  Guildhall;  and  a  verdict  was  found 
for  the  plaintiff  by  a  special  jury  of  merchants. 


(t)  A  policy,  containing  these  words  would  now  be  illegal,  in  consequence  of  14  G.  3, 
c.  38,  against  wager  policies,  Patterson  v.  Powell,  9  Bing.  '32. 


C  ART  E  R     V.     B  0  E  HM.   .  461 

On  Saturday,  the  19th  of  April  last,  Mr.  Recorder  Eyre,  on  behalf  of 
the  defendant,  moved  for  a  new  trial, 

His  objection,  was,  "  that  circumstances  were  not  sufficiently  disclosed." 

A  rule  was  made  to  show  cause:- and  copies  of  letters  and  depositions 
were  ordered  to  be  left  with  Lord  Mansfield. 

N.  B.  Four  other  cases  depended  upon  this. 

*The  counsel  for  the  plaintiff",  viz.  Mr.  Morion,  Mr.  Dunning,  p*27i-i 
and  Mr.  Wallace,  showed  cause-  on  Thursday,  the  first  of  thi^  L  J 
month.     But  first. 

Lord  Mansfield  reported  the  evidence.  That  it  was  an  action  on  a  policy 
of  insurance  for  one  year  ;  viz.  from  16th  of  October,  1759,  to  16th  Octo- 
ber, 1760,  for  the  benefit  of  the  Governor  of  Fort  Marlborough,  George 
Carter,  against  the  loss  of  Fort  Marlborough,  in  the  island  of  Sumatra  in 
the  East  Indies,  by  its  being  taken  by  a  foreign  enemy.  The  event  hap- 
pened :  the  fort  was  taken,  by  Count  D'Estaign,  within  the  yean 

The  first  witness  was  Cawthorne,  the  policy-broker,  who  produced  the 
memorandum  given  by  the  Governor's  brother,  the  plaintiff^,  to  him  :  and 
the  use  made  of  these  instructions  was  to  show  "that  the  insurance  was 
made  for  the  benefit  of  Governor  Carter,  and  to  insure  him  against  the  tak- 
ing of  the  fort  by  a  foreign  enemy." 

Both  sides  had  been  long  in  Chancery  ;  and  the  chancery  evidence  on 
both  sides  was  read  at  the  trial. 

It  was  objected,  on  behalf  of  the  defendant  to  be  a  fraud,  bj'-  concealment 
of  circumstances  which  ought  to  have  been  disclosed  ;  and  particularly  the 
weakness  of  the  fort,  and  the  probability  of  its  being  attacked  by  the 
French  ;  which  concealment  was  offered  to  be  proved  by  two  letters.  The 
first  was  a  letter  from  the  Governor  to  his  brother  Roger  Carter,  his  trustee, 
the  plaintiff'  in  this  cause ;  the  second  was  from  the  Governor  to  the  East 
India  Company. 

The  evidence  in  reply  to  this  objection  consisted  of  three  depositions  in 
Chancery,  setting  forth  that  the  Governor  had  20,000/.  in  effects,  and 
only  insured  10,000/,  ;  and  that  he  was  guilty  of  no  fault  in  defending  the 
fort. 

The  first  of  these  depositions  was  Captain  Tryon's  ;  which  proved  that 
this  was  not  a  fort  proper  or  designed  to  resist  European  enemies;  but  only  cal- 
culated for  defence  against  the  natives  of  the  island  of  Sumatra;  and  also 
that  the  Governor's  office  is  not  military,  but  only  mercantile  ;  and  that  Fort 
Marlborough  is  only  a  subordinate  factory  to  Fort  St.  George. 

There  was  no  evidence  to  the  contrary.  And  a  verdict  was  found  for 
the  plaintiff,  by  a  special  jury. 

After  his  lordship  had  made  his  report, 

*The  counsel  for  the  plaintiff' proceeded  to  show  cause  against  a  r^o-o-i 
new  trial.  •-         J 

They  argued,  that  there  was  no  such  concealment  of  circumstances  (as 
the  weakness  of  the  fort,  or  the  probability  of  the  attack)  as  would  amount 
to  a  fraud  sufficient  to  vitiate  this  contract ;  all  which  circumstances  were 
universally  known  to  every  merchant  upon  the  Exchange  of  London.  And 
all  these  circumstances,  thej'-  said,  were  fully  considered  by  a  special  jury 
of  merchants,  who  are  the  proper  judges  of  them. 

And  Mr.  Dunning  laid  it  down  as  a  rule — "That  the  insured  is  only 


462  smith's   leading  cases. 

obliged  to  discover  facts ;  not  the  ideas   or  speculations  we  may  entertain 
upon  such  facts."  • 

They  said,  this  insurance  was,  in  reality,  no  more  than  a  wager ;'"  whether 
the  French  would  think  it  their  interest  to  attack  this  fort ;  and  if  they 
should,  whether  they  would  be  able  to  get  a  ship  of  war  up  the  river  or 
not." 

Sir  Fletcher  Norton  and  Mr.  Recorder  Eyre  argued,  contra,  for  the 
defendant,  the  underwriter. 

They  insisted,  that  the  insurer  has  a  right  to  know  as  much  as  the  insured 
himself  knows. 

They  alleged,  too,  that  the  brolcer  is  the  sole  agent  of  the  insured. 

These  are  general,  universal  principles,  in  all  insurances. 

Then  they  proceeded  to  argue  in  support  of  the  present  objection. 

The  broker  had,  they  said,  on  being  cross-examined,  owned  that  he  did 
not  believe  that  the  insurer  would  have  meddled  with  the  insurance,  if  he 
had  seen  these  two  letters. 

All  the  circumstances  ought  to  be  disclosed. 

This  wager  is  not  only  "  whether  the  fort  shall  be  attacked:"  but  '«  whe- 
ther it  shall  be  attacked  and  taken." 

Whatever  really  increases  the  risk  ought  to  be  disclosed. 

Then  they  entered  into  the  particulars  which  had  been  here  kept  con- 
cealed. And  they  insisted,  strongly,  that  the  plaintiff"  ought  to  have  dis- 
covered the  weakness  and  absolute  indefensibility  of  the  fort.  In  this 
case,  as  against  the  insurer,  he  was  obliged  to  make  such  discovery ; 
though  he  acted  for  the  Oovernor.  Indeed,  a  Governor  ought  not,  in  point 
r*97qT  ^^  policy,  to  be  permitted  to  insure  at  all ;  but  if  he  *is  permitted  to 
L         J  insure,  or  will  insure,  he  ought  to  disclose  all  facts. 

It  cannot  be  supposed  that  the  insurer  would  have  insured  so  low,  at 
Al.  per  cent.,  if  he  had  known  of  these  letters. 

It  is  begging  the  question  to  say,  »  that  a  fort  is  not  intended  for  defence 
against  the  enemy."  The  supposition  is  absurd  and  ridiculous.  It  must 
be  presumed  that  it  was  intended  for  that  purpose ;  and  the  presumption 
Avas  "  that  the  fort,  the  powder,  the  guns,  &c.  were  in  a  good  and  proper 
condition."  If  they  were  not,  (and  it  is  agreed  that  in  fact  they  were  not, 
and  that  the  Governor  knew  it,)  it  ought  to  have  been  disclosed.  But  if  he 
had  disclosed  this,  he  could  not  have  got  the  insurance.  Therefore,  this 
was  a  fraudulent  cocealment ;  and  the  underwriter  is  not  Hable. 

It  does  not  follow,  that  because  he  did  not  insure  his  whole  property ; 
therefore  it  is  good  for  what  he  has  judged  proper  to  insure.  He  might  have 
his  reasons  for  insuring  only  a  part,  and  not  the  whole. 

Cur  advisare  vult. 

Lord  Mansfield  now  delivered  the  resolution  of  the  Court. 

This  is  a  motion  for  a  new  trial. 

In  support  of  it,  the  counsel  for  the  defendant  contend,  "that  some  cir- 
cumstances in  the  knowledge  of  Governor  Carter,  not  having  been  mentioned 
at  the  time  the  policy  was  underwrote,  amount  to  a  concealment,  which 
ought  in  law,  to  avoid  the  policy. 

The  counsel  for  the  plaintiff' insists,  «  that  the  not  mentioning  these  parti-' 


CARTER    V.     B  O  E  II  M.  463 

culars  does  not  amount  to  a  concealment  which  ought,  to  avoid  the  policy ; 
either  as  fraud  ;  or  as  varying  the  contract." 

1st.  It  may  be  proper  to  say  something,  in  general,  of  concealments  which 
avoid  a  policy. 

2dly.  To  state  particularly,  the  case  now  under  consideration. 

3rdly.  To  examine  whether  the  verdict,  whicii  finds  this  policy  good, 
although  the  particulars  objected  were  not  mentioned,  is  Avell  founded. 

First.     Insurance  is  a  contract  upon  speculation. 

The  special  facts  upon  which  the  contingent  chance  *is  to  be  p*.274-j 
computed,  lie  most  commonly  in  the  knowlege  of  the  insured  only  :  L  J 
the  underwriter  trusts  to  his  representation  and  proceeds  upon  confidence 
that  he  does  not  keep  back  any  circumstance  in  his  knowledge,  to  mislead 
the  underwriter  into  a  belief  that  the  circumstance  does  not  exist,  and  to 
induce  him  to  estimate  the  risk  as  if  it  did  not  exist. 

The  keepins:  ba-ck  such  circumstance  is  a  fraud,  and  therefore  the  policy 
is  void.{f)  Ahhough  the  suppression  should  happen  through  mistake, 
without  any  fraudulent  intention  ;  yet  still  the  underwriter  is  deceived,  and 
the  policy  is  void  ;  because  the  risk  run  is  really  different  from  the  risk 
understood  and  intended  to  be  run  at  the  time  of  the  agreement. 

The  policy  would  equally  be  void,  against  the  underwriter,  if  he  con- 
cealed ;  as  if  he  insured  a  ship  on  her  voyage,  which  he  privately  knew 
to  be  arrived  :  and  an  action  would  lie  to  recover  the  premium. 

Tlie  governing  principle  is  applicable  to  all  contracts  and  dealings. 

Good  faith  forbids  either  party,  by  concealing  what  he  privately  knows, 
to  draw  fhe  other  into  a  bargain  from  his  ignorance  of  that  fact  and  his 
believing  the  contrary. 

But  either  party  may  be  innocently  silent  as  to  grounds  open  to  both  to 
exercise  their  judgment  upon.  Aliud  est  celare  ;  aliud,  tacere  :  neque 
enim  id  est  celare  quicquid  rcticeas ;  sed  cum  quod  tu  scias,  id  ignorare 
emolumenti  tui  causa  velis  eos,  quorum  intersit  id  scire. 

This  definition  of  concealment,  restrained  to  the  efficient  motives  and 
precise  subject  of  any  contract,  will  generally  hold  to  make  it  void,  in  favour 
of  the  party  misled  by  his  ignorance  of  the  thing  concealed. 

There  are  many  matters,  as  to  which  the  insured  may  be  innocently 
silent ;  he  need  not  mention  what  the  underwriter  knows — Scientia  utrinque 
par  pares  contrahentes  facit. 

An  underwriter  cannot  insist  that  the  policy  is  void,  because  the  insured 
did  not  tell  him  what  he  actually  knew  ;  what  way  soever  he  came  to  the 
knowledge. 

The  insured  need  not  mention  what  the  underwriter  ought  toknow;(±) 
what  he  takes  upon  himself  the  knowledge  of:  or  what  he  waives  being 
informed  of. 

The  underwriter  needs  not  be  told  what  lessens  the  *risk  agreed  r-^^n^x-i 
and  understood  to  be  run  by  the  express  terms  of  the  policy.  He  L  J 
needs  not  be  told  general  topics  of  speculation :  as,  for  instance,  the  under- 
writer  is  bound  to  know  every  cause  which  may  occasion  natural  perils  ; 

(+)  Fitzherbcrt  v.  Mather,  1  T.  R.  12. 
_(t)  Sec  Elkin  V.  Larkins,  8  Blng.  198;  Friere  v.  Woodhousc,  Holt,  572;  Noble  y. 
Kennoway,  Dougl.  510  ;  Vallance  v.  Dewar,  1  Camp.  503  ;  Steward  v.  Bell,  5  B.  &  A, 
238. 


464  smith's   leading   cases. 

as,  the  clljjicully  of  the  voyage — the  kind  of  seasons — the  prohahilily  of 
lightning,  hurricanes,  earthquakes,  fyc.  He  is  bound  to  know  every  cause 
which  inay  occasion  political  perils  ;  from  the  rupture  of  states  ;  from 
war,  and  the  various  operations  of  it.  He  is  bound  to  knoiv  the  probu' 
hility  of  safety,  from  the  continuance  or  return  of  peace  ;  from  the  imbe- 
cility of  the  enemy,  through  the  iccakness  of  their  councils,  or  Iheir  want 
of  strength,  ^-c. 

If  the  underwriter  insures  private  ships  of  war,  by  sea  and  on  shore, 
from  ports  to  ports,  and  places  to  places,  anywhere,  he  needs  not  be  told 
the  secret  enterprises  they  are  destined  upon  ;  because  he  knows  some 
expedition  must  be  in  view ;  and  from  the  nature  of  his  contract,  without 
being  told,  he  waives  the  information.  If  he  insures  for  three  years,  he 
needs  not  be  told  any  circumstance  to  show  it  may  be  over  in  two  :  or  if 
he  insures  a  voj^age,  with  liberty  of  deviation,  he  needs  not  be  told  what 
tends  to  show  there  will  be  no  deviation. 

Men  argue  differently  from  natural  phenomena,  and  political  appearances : 
they  have  different  capacities,  different  degrees  of  knowledge,  and  different 
intelligence.  But  the  means  of  information  and  judging  are  open  to  both  : 
each  professes  to  act  from  his  own  skill  and  sagacity  :  and,  therefore,  neither 
needs  to  communicate  to  the  other. 

The  reason  of  the  rule  which  obliges  parties  to  disclose  is  to  prevent 
fraud,  and  to  encourage  good  faith.  It  is  adapted  to  such  facts  as  vary  the 
nature  of  the  contract ;  ivhich  one  privately  knows,  and  the  other  is  ignorant 
of,  and  has  no  reason  10  suspect. 

The  question,  therefore,  must  always  be  "whether  there  was,  under  all 
the  circumstances  at  the  time  tlie  policy  was  underwritten,  a  fair  represen- 
tation ;  or  a  concealment  ;  fraudulent,  if  designed  ;  or,  though  not  designed, 
varying  materially  the  object  of  the  policy,  and  changing  the  risk  understood 
to  be  run." 

This  brings  me,  in  the  second  place,  to  state  the  case -under  consideration, 
i  The  policy  is  against  the  loss  of  Fort  Marlborough,  from  being  destroyed 
_^  _-,  by,  taken  by,  or  surrendered  unto,  any  ^European  enemy,  between 
L  "*'  -J  the  1st  of  October,  1759,  and  1st  of  October,  1760.  It  was  under- 
written on  the  9th  of  May,  1760. 

The  underwriter  knew  at  the  time  that  the  policj'-  was  to  indemnify,  to 
that  amount,  Roger  Carter,  the  Governor  of  Fort  Marlborough,  in  case  the 
event  insured  against  should  happen.  The  Governor's  instructions  for  the 
insurance,  bearhig  date  at  Fort  Marlborough,  the  22d  of  September,  1759, 
were  laid  before  the  underwriter.  Two  actions  upon  this  policy  were  tried 
before  me  in  the  year  1762.  The  defendants  then  knew  of  a  letter  written 
to  the  East  India  Company,  which  the  company  offered  to  -put  into  my 
hands ;  but  would  not  deliver  to  the  parties,  because  ft  contained  some  mat-, 
ters  which  they  did  not  think  proper  to  be  made  public. 

An  objection  occurred  to  me  at  the  trial,  "whether  a  policy,  against  the 
loss  of  Fort  Marlborough,  for  the  benefit  of  the  Governor,  was  good  ;"  upon 
the  principle  which  does  not  allow  a  sailor  to  insure  his  wages. (t) 

But  considering  that  this  place,  though  called  a  fort,  was  really  but  a 

(f)  i.  e.  Because  of  its  tendency  to  climinish  his  cxcrtion3  for  the  safety  of  the  thing 
insured.     Webster  v.  De  Tastet,  7  T.  R.  157  ;  Wilson  v.  R.  E.  A.  Co.  2  Camp.  626. 


CARTER    V.     BOEIIM.  465 

factoiy  or  settlement  for  trade  ;  and  that  he,  though  called  a  Governor,  was 
really  but  a  merchant :  considering,  too,  that  the  law  all6ws  a  captain  of  a 
ship  to  insure  goods  which  he  has  on  board,  or  his  share  in  the  ship,  if  he 
be  a  part-owner  ;  and  the  captain  of  a  privateer,  if  he  be  a  part-owner,  to 
insure  his  share  :  considering,  too,  that  the  objection  did  not  lie,  upon  any- 
ground  of  justice,  in  the  mouth  of  the  underwriter,  who  knew  him  to  be  the 
Governor  at  the  time  he  took  the  premium — and  as,  with  regard  to  princi- 
ples of  public  convenience,  the  case  so  seldom  happens,  (I  never  saw  one 
before,)  any  danger  from  the  example  is  little  to  be  apprehended — I  did  not 
think  myself  warranted,  upon  that  point,  to  nonsuit  the  plaintiff;  especialljr, 
too,  as  the  objection  did  not  come  from  the  Bar. 

Though  this  point  was  mentioned,  it  was  not  insisted  upon  at  the  last 
trial ;  nor  has  it  been  seriously  argued,  upon  this  motion,  as  sufficient,  alone, 
to  vacate  the  pohcy  :  and  if  it  had,  we  are  all  of  opinion  "  that  we  are  not 
*varranted  to  say  it  is  void  upon- this  account." 

Upon  the  plaiii tiff's  obtaining  these  two  verdicts,  the  underwriters  went 
into  a  courtof  equity  ;  where  they  have  *had  an  opportunity  to  sift  ^ 
everything  to  the  bottom,  to  get  every  discovery  from  the  Governor  ^  J 
and  his  brother,  and  to  examine  any  witnesses  who  were  upon  the  spot.  At 
last,  after  the  fullest  investigation  of  every  kind  the  present  action  came  on 
to  be  tried  at  the  sittings  after  last  term. 

.  The  plaintiffproved,  without  contradiction,  that  the  place  called  Bencoolen, 
or  Fort  Marlborough,  is  U  factory  or  settlement,  but  no  military  fort  or 
fortress.  That  it  was  not  established  for  a  place  of  arms  or  defence  against 
the  attacks  of  an  European  enemy  ;  but  merely  for  the  purpose  of  trade,  and 
of  defence  against  the  natives.  .  That  the  fort  was  only  intended  and  built 
with  an  intent  to  keep  off  the  country  blacks.  That  the  only  security  against 
European  ships  of  war  consisted  in  the  difficulty  of  the  entrance  and  naviga- 
tion of  the  river,  for  want  of  proper  pilots.  That  the  general  state  and  con- 
dition of  the  said  fort,  and  of  the  strength  thereof,  was,  in  general,  well 
known  by  most  persons  conversant  or  acqaminted  with  Indian  affairs,  or  the 
state  of  the  Company's  factories  or  settlements  :  and  could  not  be  kept  secret 
or  concealed  from  persons  who  should  endeavour,  by  proper  inquiry,  to 
inform  themselves.  That  there  was  no  apprehensions  or  intelligence  of  any 
attack  by  the  French,  until  they  attacked  Nattal  in  February,  1760.  That 
on  the  8th  of  February,  1760,  there  was  no  suspicion  of  any  design  by  the 
French.-  That  the  Governor  then  bought,  from  the  witness,  goods  to  the 
value  of  4,000/.,  and  had  goods  to  the  value  of  above  20,000/.,  and  then  dealt 
for  50,000/.  and  upwards.  That  on  the  1st  of  April,  1760,  the  fort  was 
attacked  by  a  French  man-of-war  of  04  guns,  and  a  frigate  of  20  guns  under 
the  Count  D'Estaigne,  brought  in  by  Dutch  pilots  ;  unavoidably  taken  ;  and 
after\Tards  delivered  to  the  Dutch  ;  and  the  prisoners  sent  to  Batavia. 

On  the  part  of  the  defendant,  after  all  the  opportunities  of  inquir}^  no  evi- 
dence was  offered  that  the  French  ever  had  any  design  upon  Fort  Marlbo- 
rough before  the  end  of  March,  1700;  or  that  there  was  the  least  intelligence 
or  alarm  "  that  they  might  make  the  attempt,"  till  the  taking  of  Nattal,  in  ■ 
the  year  1760. 

They  did  not  offer  to  disprove  the  evidence,  that  the  governor  had  acted, 
as   in  full  security,  long  after  the  month  of  September,  1759;  and  had 
Vol.  I.— 30 


4Q&  smith's   leading   cases. 

r*97Rl  ^'^^"'^^  ^'^  money  into  goods,  *so  late  as  the  8th  of  February,  1760. 
L  -I  There  was  no  attempt  to  show  that  he  had  not  lost  by  the  capture 
very  considerably  beyond  th'e  value  of  the  insurance. 

But  the  defendant  relied  upon  a  letter,  written  to  the  East  India  Company, 
bearing  date  the  16th  of  September,  1759,  which  was  sent  to  England  by  the 
Pitt,  Captain  Wilson,  who  arrived  in  May,  1760,  together  with  the  instruc- 
tions for  insuring ;  and. also  a  letter  bearing  date  the  22nd  of  September, 
1759,  sent  to  the  plaintiff  by  the  same  conveyance,  and  at  the  same  time, 
(which  letters  his  lordship  repeated. )(«■) 

They  relied  too  upon  the  cross-examination  of  the  broker  who  negotiated 
the  policy,  "  that,  in  his  opinion,!  these  letters  ought  to  have  been  shown, 
or  the  contents  disclosed  ;  and  if  they  had,  the  policy  would  not  have  been 
underwritten." 

The  defendant's  counsel  contended  at  the  trial,  as  they  have  done  upon 
this  motion,  "that  the  policy  was  void" — 

1st.  Because  the  state  and  condition  of  the  fort,  mentioned  in  the  Gov- 
ernor's letter  to  the  East  India  Company,  was  not  disclosed. 

2dly.  Because  he  did  not  disclose  that  the  French,  not  being  in  r>  rendi- 
tion to  relieve  their  friends  upon  the  coast,  were  more  likely  to  make  an 
attack  upon  this  settlement,  rather  than  remain  idle. 

3rdly.  That  he  had  not  disclosed  his  having  received  a  letter  of  the  4th 
of  February,  1759,  from  which  it  seemed  that  the  French  had  a  design  to 
take  this  settlement,  by  surprise,  the  year  before. 

They  also  contended  that  the  opinion  of  the  broker  was  almost  decisive. 

The  whole  was  laid  before  the  jury  ;  who  found  for  the  plaintiff". 

Thirdly — It  remains  to  consider  these  objections,  and  to  examine  "whe- 
ther this  verdict  is  well  founded." 

To  this  purpose  it  is  necessary  to  consider  the  nature  of  the  contract,  at 
the  time  it  was  entered  into. 

The  policy  was  signed  in  May,  1760.  The  contingency  was,  whether 
Fort  Marlborough  was  or  would  be  taken,  by  an  European  enemy,  between 
October,  1759,  and  October,  1760. 

r*.>7Qi  '^^^^  computation  of  the  risk  depended  upon  the  *chance,  "whether 
L  J  any  European  power  would  attack  the  place  by  sea."  If  they  did, 
it  was  incapable  of  resistance. 

The  underwriter  at  London,  in  x\Iay,  1760,  could  judge  much  better  of 
the  probability  of  the  contingency,  than  Governor  Carter  could  at  Fort 
Marlborough,  in  September,  1759.  He  knew  of  the  success  of  the  opera- 
tions of  the  war  in  Europe.  He  knew  what  naval  force  the  English  and 
French  had  sent  to  the  East  Indies.     He  knew,  from  a  comparison  of  that 

{a)  The  former  of  tlicm  notifies  to  tlic  East  India  Compan_y,  tliat  the  French  had,  the 
preceding-  year,  a  design  on  font,  to  attempt  taking  that  settlement  by  surprise  ;and  that 
it  was  very  probaLle  they  miglit  revive  that  design.  It  confesses  and  represents  the  v?eak. 
ness  of  the  fort;  its  being  badly  supplied  with  stores,  arms,  and  ammunition ;  and  the  im- 
practicability of  maintaining  it  (in  its  then  state)  against  an  European  enemy. 

The  latter  letter  (to  his  brother)  owns  tliat  he  is  "  now  more  afraid  than  formerly  that 
the  Frencli  should  attack  and  take  the  settlement ;  for,  as  they  cannot  muster  a  force  to 
relievo  their  iriends  at  the  coast,  they,  ma}%  rather  than  remain  idle,  paj'  us  a  visit.  It 
seems  they  had  such  an  intention  last  year."  And  therefore  he  desire's  his  brother  to  get 
an  insurance  made  upon  his  stock  there. 

tSee  Rickards  v.  Murdock,  10  B.  &  C.  227;  Campbell  v,  Rickards,  5  B.  &  Ad.  846; 
2  Ncv.  &  M.  546. 


CARTER    V.     BOEHM.  467 

force,  whether  the  sea  was  open  to  any  such  attempt  by  the  French.  He 
knew,  or  might  know,  every  thing  which  was  known  at  Fort  Marlborough, 
in  September,  1759,  of  the  general  state  of  affairs  in  the  East  Indies,  or  the 
particular  condition  of  Fort  Marlborough,  by  the  ship  which  brought  the 
orders  for  the  insurance.  He  knew  that  ship  must  have  brought  many 
letters  to  the  East  India  Company;  and  particularly  from  the  Governor. 
He  knew. what  probability  there  was  of  the  Dutch  committing  or  having 
committed  hostilities. 

Under  these  circumstances,  and  with  this  knowledge,  he  insures  against 
the  general  contingency  of  the  place  being  attacked  by  an  European 
power. 

If  there  had  been  any  design  on  foot,  or  any  enterprise  begun,  in  Septem- 
ber, 1759,  to  the  knowledge  of  the  Governor,  it  would  have  varied  the  risk 
understood  by  the  underwriter  ;  because,  not  being  told  of  a  particular 
design  or  attack  then  subsisting,  he  estimated  the  risk  upon  the  foot  of  an 
uncertain  operation,  which  might  or  might  not  be  attempted. 

But  the  Governor  had  no  notice  of  any  design  subsisting  in  September, 
1759.  There  was  no  such  design,  in  fact :  the  attempt  was  made  without 
premeditation,  from  the  sudden  opportunity  of  a  favourable  occasion,  by  the 
connivance  and  assistance  of  the  Dutch,  which  tempted  Count  D'Estaigne 
to  break  his  parole. 

These  being  the  circumstances  under  which  the  contract  was  entered 
into,  we  shall  be  better  able  to  judge  of  the  objections  upon  the  foot  of  con- 
cealments. 

The  first  concealment  is,,  that  he  did  not  disclose  the  condition  of  the 
place. 

The  underwriter  knew  the  insurance  was  for  the  Governor.  He  knew 
the  Governor  must  be  acquainted  *with  the  state  of  the  place.  He  r-^.^gol 
knew  the  Governor  could  not  disclose  it,  consistent  with  his  duty.  L 
He  knew  the  Governor,  by  insuring,  apprehended  at  least  the  possibility 
of  an  attack.  With  this  knowledge,  without  asking  a  question,  he  under- 
wrote. 

By  so  doing,  he  took  the  knowledge  of  the  state  of  the  place  upon  him- 
self. It  was  a  matter  as  to  which  he  might  be  informed  various  ways  :  It 
was  not  a  malter  within  the  private  knoivledge  of  the  Governor  only. 

But,  not  to  rely  upon  that,  the  utmost  which  can  be  contended  is,  that 
the  underwriter  trusted  to  the  fort  being  in  the  condition  in  which  it  ought 
to  be  :  in  like  manner  as  it  is  taken  for  granted,  that  a  ship  insured  is 
seaworthy. 

What  is  that  condition  ?  All  the  witnesses  agree  "  that  it  was  only  to 
resist  the  natives,  and  not  an  European  force."  The  policy- insures  against 
a  total  loss  ;  taking  for  granted  "  that  if  the  place  was  attacked  it  would  be 
lost." 

The  contingency,  therefore,  which  the  underwriter  has  insured  against 
is,  "  whether  the  place  would  be  attacked  by  an  European  force  ;"  and  not 
««  whether  it  w^ould  be  able  to  resist  such  an  attack,  if  the  ships  could  get  up 
the  river." 

It  was  particularly  left  to  the  jury  to  consider,  "  whether  this  was  the 
contingency  in  the  contemplation  of  the  parlies  :"  they  have  found  that  it 
was. 


46&'  smith's  leading  cases. 

And  we  are  all  of  opinion,  "  that  in  this  respect,  their  conclusion  is  agree- 
able to  the  evidence." 

In  this  view,  the  state  and  condition  of  the  place  was"  material,  only  in 
case  of  a  land  attack  by  the  natives. 

The  2nd  concealment  is,  his  not  having  disclosed,  that,  from  the  French, 
not  being  able  to  relieve  their  friends  upon  the  coast,  they  might  make  them 
a  visit. 

This  is  no  part  of  the  fact  of  the  case  :  it  is  mere  speculation  of  the  Gov- 
ernor's, from  the  general  state  of  the  war.  The  conjecture  was  dictated  to 
him  from  his  fears.  It  is  a  bold  attempt  for  the  conquered  to  attack  the 
conqueror,  in  his  own  dominions.  The  practicability  of  it,  in  this  case, 
depended  upon  the  English  naval  force  in  those  seas  ;  which  the  under- 
writer could  better  judge  of  at  London,  in  May,  1760,  than  the  Governor 
could  at  Fort  Marlborough,  in  September,  1759. 

*The  3rd  concealment  is,  that  he  did  not  disclose  the  letter  from 
L  -^  Mr.  Winch,  of  the  4th  of  February,  1759,  mentioning  the  design  of 
the  French  the  year  before. 

What  the  letter  was  ;  how  he  mentioned  the  design  ;  or  upon  what  autho- 
rity lie  mentioned  it;  or  by  whom  the  design  was  supposed  to  be  imagined, 
does  not  appear.  The  defendant  has  had  every  opportunity  of  discovery; 
and  nothing  has  come  out  upon  it,  as  to  this  letter,  which  he  thinks  makes 
for  his  purpose. 

The  plainiifF  offered  to  read  the  account.  Winch  wrote  the  East  India 
Company:  which  was  objected  to;  and  therefore,  not  read.  The  nature  of 
that  intelligence,  therefore,  is  very  doubtful.  But,  taking  it  in  the  strongest 
lio-ht,  it  is  a  report  of  a  design  to  surprise,  the  year  before  ;  but  then  dropped. 

This  is  a  topic  of  mere  general  speculation  ;  which  made  no  part  of  the 
facts  of  the  case  upon  which  the  insurance  was  to  be  made. 

It  was  said,  if  a  man  insured  a  ship,  knowing  that  two  privateers  were 
lying  in  her  way, Without  mentioning  that  circumstance,  it  would  be  a  fraud  ; 
I  agree  to  it.t  But  if  he  knew  that  two  privateers  had  been  there  the  year 
before,  it  would  be  no  fraud  not  to  mention  that  circumstance  :  because  it 
does  not  follow  that  they  will  cruise  this. year  at  the  same  time,  in  the  same 
place  ;  or  that  they  are  in  a  condition  to  do  it.  If  the  circumstance  of  "  this 
design  laid  aside"  had  been  mentioned,  it  would  have  tended  rather  to 
lessen  the  risk  than  increase  it :  for  the  design  of  a  surprise  which  has 
transpired,  and  been  laid  aside,  is  less  likely  to  be  taken  up  again  ;  especially 
by  a  vanquished  enemy. 

The  jury  considered  the  nature  of  the  Governor's  silence,  as  to  these 
particulars  :  they  thought  it  innocent ;  and  that  the  omission  to  mention 
them  did  not  vary  the  contract.  And  we  are  all  of  opinion,. "  that,  in  this 
respect,  they  judged  extremely  right." 

There  is  a  silence,  not  objected  to  at  the  trial,  nor  upon  this  motion,  which 
rnio-ht  with  as  much  reason  have  been  objected  to  as  the  two  last  omissions  ; 
rather  more. 

It  appears  by  the  Governor's  letter  to  the  plaintiff,  "that  he  was  princi- 
pally apprehensive  of  a  Dutch  war."     He  certainly  had,  what  he  thought, 

t  Ace.  Beckwaitc  v.  Walgrovc,  cited  3  Taunt,  41  ;  sec  Durrcll  v.  Bcderley,  1  Holt,  283. 


CARTER    V.     BOEHM.  469 

good  grounds  for  this  ^apprehension.  Count  D'Estaigne,  being  ^  ^ 
piloted  by  tlie  Dutch,  delivering  the  fort  to  the  Dutch,  and  sending  L  J 
the  prisoners  to  Batavia,  is  a  confirmation  of  those  grounds.  And  probably 
the  loss  of  the  place  was  owing  to  the  Dutch.  Thf  French  could  not  have 
got  up  the  river  without  Dutch  pilots:  and  it  is  plain  the  whole  was  con- 
certed with  them.  And  yet,  at  the  time  of  underwriting  the  policy,  there 
was  no  intimation  about  the  Dutch. 

'The  reason  why  the  counsel  have  not  objected  to  his  not  disclosing  the 
grounds  of  this  apprehension  is,  because  it  must  have  arisen  from  political 
speculation,  and  general  intelligence:  therefore,  they  agree  it  is  not  neces- 
sary to  communicate  such  things  to  an  underwriter. 

Lastly  :  great  stress  was  laid  upon  the  opinion  of  the  broker. 

But  we  all  think  the  jury  ought  not  to  pay  the  least  regard  to  it.  It  is 
mere-opinion  ;  which  is  not  evidence.  It  is  opinion  after  an  event.  It  is 
opinion  without  the  least  foundation  from  any  previous  precedent,  or  usage. 
It  is  an  opinion  which,  if  rightly  formed,  could  only  be  drawn  from  the 
same  premises  from  which  the  court  and  jury  were  to  determine  the  cause  : 
and,  therefore,  it  is  improper  and  irrelevant  in  the  mouth  of  a  witness.! 

There  is  no  imputation  upon  the  Governor,  as  to  any  intention  of  fraud. 
By  the  same  conveyance,  which  brought  his  orders  to  insure,  he  wrote  to 
the  company  every  thing  which  he  knew  or  suspected :  he  desired  nothing 
to  be  kept  a  secret  which  he  wrote  either  to  them  or  his  brother.  His  sub- 
sequent conduct,  down  to  the  8th  of  February,  1760,  showed  that  he  thought 
the  danger  very  improbable. 

The  reason  of  the  rule  against  concealments  is,  to  prevent  fraud  and 
encourage  good  faith. 

If  the  defendant's  objections  were  to  prevail,  in  the  present  c?ise,  the  rule 
would  be  turned  into  an  instrument  of  fraud. 

The  underwriter,  here,  knowing  the  Governor  to  be  acquainted  with  the 
state  of  the  place ;  knowing  that  he  apprehended  danger,  and  must  have 
some  ground  for  his  apprehension  ;  being  told  nothing  of  either  ;  signed  this 
policy,  without  asking  a  question. 

If  the  objection  "tha-t  he  was  not  told"  is  sufHcicnt  to  vacate  it,  he  took 
the  premium, -knowing  the  policy,  to  be  *void  ;  in  order  to  gain,  if  ^ 
the  alternative  turned  out  one  way  ;  and  to  make  no  satisfaction,  if  it  L-  J 
turned  out  the  other.  He  drew  the  Governor  in  to  a  false  confidence, 
•'that,  if  the  worst  should  happen,  he  had  provided  against  total  ruin;" 
knowing,  at  the  same  time,  "  that  the  indemnity  to  which  the  Governor 
trusted  was  void." 

There  was  not  a  word  said  to  him  of  the  affairs  of  India,  or  the  state  of 
the  war  there,  or  the  condition  of  Fort  Marlborough.  If  he  thought  that 
omission  an  objection,  at  the  time,  he  ought  not  to  have  signed  the  policy 
with  a  secret  reserve  in.  his  own  mind  to  make  it  void  ;  if  he  dispensed  with 
the  information,  and  did  not  think  this  silence  an  objection  then,  he  cannot 
take  it  up  now,  after  the  event. 

What  has  often  been  said  of  the  Statute  of  Frauds  may,  with  more  pro- 
priety, be  apphed  to  every  rule  of  law,  drawn  from  principles  of  natural 

t  Accord.  Campbell  v.  Rickards,  5  B.  &  Ad.  8 IG ;  2  N.  &  M.  r.lG ;  overruling  Kickards 
V.  Murdock,  10  B.  &  C.  527.     Sec  Chapman  v.  Walton,  10  Bingli.  57. 


470 


SMITHS'    LEADING     CASES. 


equity,  to  prevent  fraud,  "that  it  should  never  be  so  turned,  construed,  or 
used,  as  to  protect  or  be  a  means  of  fraud." 

After  the  fullest  deliberation,  we  are  all  clear  that  the  verdict  is  well 
founded  ;  and  there  ought  not  to  be  a  new  trial ;  consequently  that  the  rule 
for  that  purpose  ought  to  be  discharged. 

Rule  discharged. 


This  case  is  inserted  on  account  of 
the  masterly  exposition  of  some  of  the 
leading  principles  of  insurance  law  con- 
tained in  the  judgment  of  the  Lord  Chief 
Justice.  It  would  not  be  proper  to  pass 
from  it,  without  informing  the  reader 
that  a  great  deal  of  controversy  has 
since  taken  place  upon  one  of  the  sub- 
jects incidentally  touched  upon  by  Ids 
lordship,  viz.,  the  admissibility  of  the 
broker's  evidence  as  to  his  opinion  on 
the  materiality  of  the  facts  not  commu- 
nicated. "  Great  stress,"  says  his  lord- 
ship, '•  was  laid  on  the  opinion  of  the 
broker  :  but  we  all  think  the  jury  ought 
not  to  pay  the  least  regard  to  it.  It  is 
mere  opinion,  which  is  not  evidence.  It 
is  opinion  after  an  event.  It  is  opinion, 
without  the  least  foundation  from  any 
previous  precedent  or  usage.  It  is  an 
opinion  which,  if  rightly  formed,  could 
be  drawn  only  from  the  same  premises 
from  which  the  court  and  jury  were  to 
determine  the  cause ;  and,  therefore,  it 
is  improper  and  irrelevant  in  the  mouth 
of  a  witness."  Very  similar  were  tlie 
expressions  of  Gibb^,  C.  J.  in  Durrell  v. 
Bederley,  Holt,  283:  "It  is  my  opinion 
that  tlie  evidence  of  the  underwriters, 
who  were  called  to  give  their  opinion  of 
the  materiality  of  the  rumours,  and  the 
effect  they  would  have  had  upon  the 
premium,  is  not  admissible.  It  is  not  a 
question  of  science,  upon  which  scienti- 
fic men  will  mostly  think  alike,  but  a 
question  of  opinion,  liable  to  be  governed 
by  fancy,  and  in  which  the  diversity  might 
be  endless."  And  upon  the  ground  thus 
stated  by  Gibbs,  C.  J.,  it  has  been  fre- 
quently sought  to  distinguish  Lindenau 
V.  Desborough,  8  B.  &  C.  5S6,  in  which, 
in  an  action  on  a  life  policy,  the  evi- 
r  *Oftd  1  dence  of  medical  men,  *as  to  the 
L  -1    materiality    of  certain    symp- 

toms which  had  not  been  communicated, 
was  received  and  laid  before  the  jury, 
from  the  question  as  to  the  admissibility 
of  the  opinions  of  brokers  and  under- 
writers.    In  Rickards  v.  Murdock,  10 


B.  &  C.  527,  such  evidence  was,  how- 
ever, admitted.  That  was  an  action  on 
a  policy,  effected  by  the  plaintiff,  as 
agent  for  Mr.  Campbell,  of  Sydney,  upon 
goods  by  the  ship  Cumberland,  Upon 
the  trial  it  appeared  that  Mr.  Campbell, 
having  shipped  the  goods  in  question 
by  the  Cumberland,  wrote  by  another 
ship  (the  Australia)  to  the  plaintiff*, 
desiring  him  to  effect  an  insurance 
thereon,  and  telling  him  at  the  same 
time,  that,  in  order  to  give  every  chance 
for  the  Cumberland's  arrival,  he  hs-d 
directed  the  person  intrusted  with  that 
letter  not  to  deliver  it  till  thirty  days 
atler  the  Australia's  reaching  London. 
These  instructions  were  obeyed :  the 
Cumberland  not  having  arrived  at  the 
expiration  of  the  prescribed  period,  the 
letter  was  delivered  to  the  plaintiff",  who 
thereupon  handed  the  letter  to  their 
broker,  desiring  him  to  effect  the  insur- 
ance, which  he  accordingly  did  with  the 
Indemnity  Insurance  Company,  whom 
the  defendant  represented.  But  he  read 
to  the  company's  manager  that  part  of 
the  letter  only  which  contained  the 
instructions  to  insure,  the  nature  of  the 
goods,  and  the  time  of  their  sailing.  At 
the  trial  it  was  contended  that  the  other 
circumstances  respecting  the  mode  in 
which  the  letter  was  conveyed  to  Eng- 
land, and  the  time  it  had  remained  there, 
were  material,  and  ought  to  have  been 
communicated,  and  that  their  suppression 
vitiated  the  policy :  and  several  under- 
writers were  called,  who  deposed  that, 
in  their  opinion,  the  whole  of  the  letter 
ought  to  have  been  communicated,  and 
that  the  parts  suppressed  were  material. 
This  evidence  was  objected  to,  but  ad- 
mitted ;  and,  on  a  motion  for  a  new  trial, 
after  a  verdict  for  the  defendant,  Lord 
Tenterden,  delivering  the  judgment  of 
the  court, said,  "Several  witnesses  were 
examined,  who  stated  that  they  thought 
the  letter  material ;  but  it  has  been  con- 
tended that  no  such  evidence  ought  to 
have  been  received,     I  know  not  how 


CARTER    V.     BOEHM. 


471 


the  materiality  of  any  matter  is  to  be 
ascertained  but  by  the  evidence  of  per- 
sons conversant  with  the  subject-matter 
of  tlie  inquiry." 

This  opinion  seems  to  be  embraced 
by  the  Court  of  Common  Pleas,  in  Ciiap- 
nian  v.  Walton,  10  Bing.  57.  In  that 
case  the  defendant,  who  was  a  broker, 
had  effected  policies  for  Richardson,  in 
which  the  voyage  was  described  to  be 
"  at  and  from  London  to  St.  Thomas, 
with  leave  to  call  at  Madeira  and  Tene- 
riffe."  Richardson  afterwards  received 
a  letter  from  his  supercargo,  who  stated 
that  he  intended  to  sail  the  next  day 
"  for  the  Canaries,"  and  thence  to  one 
or  more  of  the  West  India  Islands,  say 
Baibadoes,  St.  Kitt's  and  St.  Thomas, 
where  he  was  told  that  he  should  be 
able  to  dispose  of  the  part  of  his  cargo 
unsold  "  in  the  Canaries."  With  respect 
to  linens,  he  said  he  had  no  fear,  "  as  in 
Canary  any  reasonable  quantity  is  desir- 
able." This  letter  Richardson  handed 
to  the  defendaiit,  telling  him  "  that  the 
voyage  was  altered,  and  that  he  left  him 
to  do  the  Jieedful  with  it."  The  defend- 
ant got  the  policies  altered,  by  adding 
leave  to  proceed  to  St.  Kitt's  and  Bar- 
badoes  for  all  purposes.  The  vessel  was 
lost  at  the  Grand  Canary  Island.  Ac- 
tions were  brought  on  the  jx)licies,  which 
turned  out  unsuccessful  on  account  of 
the  voyage  not  being  covered  by  the  al- 
terations, and  this  action  was  brought  by 
the  assignees  of  Richardson,  who  had  be- 
come a  bankrupt,  against  the  defendant, 
for  negligence  in  not  having  procured 
the  proper  alterations  to  be  made.  The 
plaintifis  contended  that  it  was  the  de- 
fendant's duty  to  have  procured  the  in- 
sertion of  "liberty  to  proceed  or  touch 
at  any  of  the  Canary  Island^."  The 
defendant's  counsel,  on  the  other  hand, 
called  several  policy-brokers,  and  put- 
ting into  their  hands  the  policies,  the 
bills  of  lading,  and  invoices  of  the  goods, 
and  the  su;)ercargo's  letter,  asked  them 
whal  allcrutions  of  the  policies  a  skil- 
ful insurance-broker  ought,  in  their 
judgment  to  have  procured,  having 
these  documents  in  his  possession,  and 
being  instructed  to  do  the  needful  f  To 
which  question  they  replied  that  they 
thought  he  would  do  ample  justice  by 
procuring  llie  alterations  as  made.  The 
jury  having  found  for  the  defendant,  the 
court  discharged  a  rule  for  a  new  trial, 
r  *285  ]  *"ioved  on  the  ground  that  this 
-'  evidence  had  been  improperly 
admitted.     "It  is  objected,"   said   the 


Lord  Chief  Justice,  delivering  the  judg- 
ment of  the  court,  "that  to  allow  this 
question  to  be  piU  to  the  witnesses  is,  in 
effect  and  substance,  to  allow  them  to 
be  asked,  what  is  the  meaning  of  the 
letter] — that  is,  to  ask  them  whether 
the  letter  told  the  defendant  that  the 
vessel  was  going  to  the  Canaries,  where- 
as, the  letter  ought  to  be  allowed  to 
speak  for  itself,  or,  if  there  were -any 
doubt  upon  the  meaning,  it  ought  to  be 
determined  by  the  court  and  jury,  and 
not  b}'  the  evidence  of  insurance-brokers, 
or  any  other  witnesses.  It  may  be  ad- 
mitted that,  if  such  were  the  real  nature 
of  the  question,  the  evidence  offered 
would  have  been  inadmissible.  .  .  . 
But  it  is  not  a  simple  abstract  question, 
as  supposed  by  the  plaintitis,  what  the 
words  of  the  letter  mean;  it  is  what 
others  conversant  with  the  business  of  a 
policy-broker  would  have  understood  it 
to  mean,  and  how  they  would  have  acted 
upon  it  under  tlie  same  circumstances. 
The  time  of  year  at  which  the  voyage  is 
performed — the  nature  of  the  cargo  on 
board — the  objects  of  the  voyage,  as  dis- 
closed in  the  letter — above  all,  the  cir- 
cumstances that  the  original  voyage 
described  in  the  policy  itself  compre- 
hended Teneriffe,  the  greatest  and  most 
important  of  the  Canary  Islands,  would 
all  operate  in  the  minds  of  experienced 
men  in  determining  whether  it  was  in- 
tended that  the  alteration  should  include 
a  liberty  to  touch  and  stay  at  the  Cana- 
ries in  general;  and  this  conclusion,  it 
appears  to  us,  neither  judge  nor  jury 
could  arrive  at  from  the  simple  perusal 
of  the  letter,  unassisted  by  evidence, 
because  they  would  not  have  the  expe- 
rience upon  which  a  judgment  could 
be  formed.  The  decision  in  this  case 
appears  to  be  consistent  with  the  princi- 
ple laid  down  by  Mr.  Justice  Holroyd, 
in  Berthon  v.  Loughman,  2  Star.  N.  P. 
258,  that  a  witness  conversant  with  the 
subject  of  insurance  might  give  his  opi- 
nion, as  a  matter  of  judgment,  whether 
particular  facts,  if  disclosed,  would  make 
a  difference  as  to  the  amount  of  the  pre- 
mium— a  principle  which  has  been  con- 
firmed by  the  later  case  of  Rickards  v. 
Murdock,  10  B.  &  C.  527:  and  it  is 
difficult  to  reconcile  the  opinion  given 
by  Lord  Chief  Justice  Gibbs,  in  the 
case  of  Durrell  v.  Bederley,  Holt,  N, 
P.  C.  283,  with  the  judgment  of  the 
Court  of  King's  Bench  in  the  case  last 
above  referred  to.  We  think,  there- 
fore, both  on  principle,  and  on  the  au- 


473 


SMITHS    LEADING     CASES. 


thority  of  the  decided  cases,    the   evi- 
dence was  properly  admitted." 

It  is  remarkable  that  the  above  case, 
which  was  decided  in  Trinity  term  1883, 
and  contains  a  recognition  of  the  opinion 
of  the  Kinir's  Bench  in  Rickards  v.  Mur- 
dock,  should  not  have  been  alluded  to  in 
any  stage  of  Campbell  v.  Rickards,  5  B. 
&  Adol.  640,  decided  in  the  Michaelmas 
term  of  the  same  year.  Campbell  v. 
Rickards  arose  out  of  the  same  transac- 
tion as  Rickards  v.  Murdock.  The  ac- 
tion brought  against  the  insurance  ofSce 
having,  as  we  have  seen,  failed  in  con- 
sequence of  the  suppression  by  the  broker, 
who  was  employed  by  Rickards  &  Co. 
to  effect  the  policy,  Campbell,  the  mer- 
chant of  Sydney,  upon  whose  goods  the 
policy  liad  been  effected,  brought  this 
action  against  Rickards  &  Co.,  to  re- 
cover compensation  for  the  loss  which 
he  had  sustained  by  their  negligence ; 
in  not  taking  care  that  the  policy  effect- 
ed should  be  valid.  At  the  trial,  seve- 
ral brokers  and  underwriters  were  called 
for  the  plaintiff,  and  the  same  letter 
which  was  produced  in  Rickards  v.  Mur- 
dock being  put  into  their  hands,  they 
were  asked,  "  whether  it  loas  material 
to  have  communicated  the  fact  that  that 
letter  had  arrived  in  this  country  thirty 
days  be/ore  ejecting  the  insurance?" 
The  answer  was  that  it  was  material. 
The  jury  having  found  a  verdict  for  the 
plaintiff,  and  a  new  trial  being  moved  for, 
on  the  ground  that  the  evidence  had  been 
improperly  admitted,  the  rule  was  made 
absolute.  The  Lord  Chief  Justice  Den- 
man,  delivering  the  judgment  of  the 
court,  referred  to  the  opinion  of  Lord 
Mansfield  in  Carter  v.  Boehm,  and  that 
of  Chief  Justice  Gibbs  in  Durrell  v. 
Bederley.  "  In  some  more  recent 
cases/'  continued  his  lordship,  "  such 
questions  have  certainly  been  proposed 
to  witnesses,  but  they  have  passed  with- 
out objection,  and  it  rnay  be  observed 
that  the  answers  will  often  imply  no 
more  than  scientific  witnesses  may  pro- 
perly state — their  opinion  on  some  ques- 
tion of  science.  This  is  specially  true 
r*9Rfi1  °^  *rnedical  opinions.  In  Ric- 
'•  -•  kards  v.  Murdock,  indeed,  out  of 
which  the  present  case  arises,  this  kind 
of  testimony  was  received.  In  giving 
judgment  on  the  motion  for  a  new  trial, 
Lord  Tenterdendid  not  expressly  defend 
its  admissibility,  but  his  words  are  in 
the  alternative.  "  If  sucli  evidence  be 
rejected,  the  court  and  jury  must  decide 
the  point  by  their  own  judgment,  un- 


assisted by  that  of  others.  If  they  are 
to  decide,  all  the  court  agree  in  think- 
ing the  letter  was  material,  and  ought 
to  have  been  communicated,  and  that  a 
jury  would  have  been  bound  to  com'e  to 
that  conclusion.'  Now,  this  mode  of 
disposing  of  the  question  does  not  appear 
to  the  court,  on  reflection,  to  be  quite 
correct;  but  we  think  that,  as  the  jury 
are  to  decide  on  the  materiality  of  facts, 
and  the  duty  of  disclosing  them,  this 
verdict,  founded  in  some  degree  on  evi- 
dence that  could  not  be  legally  received, 
ought  to  be  set  aside.  The  rule  for  a 
new  trial  must  therefore  be  made  abso- 
lute." 

Sucli  being  the  state  of  the  authori- 
ties, the  question  of  admissibility  can  be 
hardly  even  now  considered  as  settled  ; 
for  opposed  to  the  decision  of  the  King's 
Bench,  in  Campbell  v.  Rickards,  is  the 
opinion  of  the  judges  of  that  court  in 
Rickards  v;  Murdock,  recognized  by  the 
Court  of  Common  Pleas  in  Chapman  v. 
Walton.  The  difference  is,  however, 
perhaps  le.ss  upon  any  point  of  law  than 
on  the  application  of  a  settled  law  to 
certain  states  of  facts ;  for,  on  the  one 
hand,  it  appears  to  be  admitted  that  the 
opinion  of  witnesses  possessing  peculiar 
skill  is  admissible  whenever  the  subject- 
matter  of  inquiry  is  such  that  inexperi- 
enced persons  are  unlikely  to  prove 
capable  of  forming  a  correct  judgment 
upon  it  without  such  as,5i3tance,  in  other 
words,  when  it  so  far  partakes  of  the 
nature  of  a  science  as  to  require  a  course 
of  previous  habit,  or  study,  in  order  to 
the  attainment  of  a  knowledge  of  it ; 
see  Folkes  v.  Chadd,  3  Dougl.  157;  Jl. 
v.~Searle,  2  M.  &  M.  75;  Thornton  v. 
R.  E.  Assurance  Co.,  Peake,  25  ;  Chau- 
rand  v.  Angerstein,  Peake,  44;  while, 
on  the  other  iiand,  it  does  not  seem  to 
be  contended  that  the  opinions  of  v/it- 
nesses  can  be  received  when  the  inquiry 
is  into  a  subject-matter,  the  nature  of 
which  is  not  such  as  to  require  any 
peculiar  habits  or  study  in  order  to 
qualify  a  man  to  understand  it.  Now, 
the  question. of  materiality  in  an  assur- 
ance seems  one  which  may  po.ssibly 
happen  to  fall  within  either  of  the  above 
two  classes,  for,  setting  out  of  the  ques- 
tion the  cases  of  life-policie.s,  where 
the  medical  evidence  is  unquestionably 
scientific,  and  necessary  in  order  to 
enable  the  jury  to  come  to  a  right  con- 
clusion, it  is  submitted  that  it  may  hap- 
pen, even  in  cases  of  sea-policies,  that  a 
communication,  the  materiality  of  which 


CARTER    V.     BOEHM.  473 

is  in  question,  may  be  one  respecting  simplest  nature ;  a  vessel  which  sailed 

the  importance  of  uiiich  no  one  except  after  tiie  one  insured  had  arrived  thirty- 

an  underwriter  can,  in  all   probability,  nine  days  before    it,  and    it  was  easy, 

forma  correct  opinion.     If  such  a  case  without  much  experience  in  the  busi- 

were  to  occur,  it  possibly  would  not  bo  ness  of  an    underwriter,  to   divine  the 

considered  as  failing-  within  the  decision  probable  fate  of  the  siiip  insured  under 

in  Campbell  v.  Rickards.     In  that  case  those  circumstances, 
the  facts  concealed  were  of  the  very 


It  would  seem  that  the  insured  is  not  bound  to  communicate  to  the  insu- 
rers the  pavtic-ulars  of  those  general  facts  which,  in  one  form  or  other,  must 
be  present  in  every  contract  of  insurance.  As  the  insurer  must  know  that 
they  exist,  if  he  wish  to  learn  in  what  form  they  exist,  he  should  inquire  ; 
and  so  put  the  assured  to  tlie  necessity  of  confessing,  what  is  the  true  state 
of  the  case.  Thus  under  ordinary  circumstances,  the  insured  is  ^.ot  bound 
to  communicate  the  age  of  the  vessid,  nor  where  she  was  built ;  Poppleston 
V.  Kitchen,  3  Wash.  C.  C.  Rep.  139.  Nor,  independently  of  the  terms  of 
the  policy,  cau  he  be  charged  with  concealment,  for  not  stating  the  time  of 
sailing,  or  the  character  of  the  propertj^  as  to  ownership,  or  neutrality  ;  Barn- 
wall  V,  Church,  1  Caiues,  237;  Elling  v.  Scolt,  2  Johnson's  Rep.  157; 
Scion  V.  Lfow,  1  Johnson's  Cases,  1  ;  Buck  v.  Chesapeake  Insurance  Co.,  1 
Peters,  101;  Fiske  v.  The  New  England  Insurance  Co.,  15  Pick.  310. 
As  to  points  of  this  sort,  it  is  evident  that  under  ordinary  circumstances,  the 
minds  of  the  insurers  may  as  readily  be  directed  to  them,  as  those  of  the 
insured,  and  the  oiie  cannot  be  liable  for  concealing  what  the  other  did  not 
think  it  worth  while  to  know.  But  if  circumstances  have  occurred,  which 
are  unknown  to  the  insurer,  and  which  render  the  materiality  of  this  class 
of  facts  to  the  risk,  greater  than  would  be  the  case  under  ordinary  circum- 
stances, it  may  become  a  duty  on  the  part  of  the  insured  to  state  all  his 
information  on  tlie  subject,  with  the  utmost  precision.  Thus  where  the 
insured  knows,  that  his  vessel  is  behind  the  lime  usually  occupied  for  the 
voyage,  or  that  vessels  which  sailed  some  time  after  her,  have  arrived,  he 
will  be  bound  to  mention  the  time  of  sailing  to  the  underwriter,  if  the  latter 
be  ignorant  of  it.  Yale  v.  Phoenix  Ins.  Co.,  1  Washington,  C.  C.  R.  283  ; 
McLanahan  v.  Universal  Ins.  Co.,  1  Peters,  170  ;  Livingston  v.  Delafield, 
3  Caines,  53.  The  general  rule,  however,  that  nothing  which  is  mailer  of 
general  and  public  knowledge,  need  be  communicated,  applies  in  this 
instance  ;  and  it  consequently  follows,  that  although  the  ordinary  incidents 
of  a  trade  be  rendered  material  to  the  risk  insured  on  a  policy,  to-an  extent 
greater  than  before,  still  this  alteration,  if  produced  by  an  event,  which  is 
generally  known,  will  not  affect  the  duly  of  the  insured.  Thus  he  will  not 
be  bound  to  communicate  the  fact,  that  the  cargo  insured  is  contraband  of 
war,  although  in  consequence  of  the  breaking  out  of  hostilities,  it  be  on  that 
account  liable  to  capture  and  condemnation.  The  insurer,  in  the  absence  of 
any  representation  to  the  contrary,  ought  to  presume  that  the  trade  insured 
continues  to  flow  in  the  same  course  as  before  the  war  ;  and  is  consequently 
bound  to  take  cognizance  of  the  increased  risk  arising  from  so  public  an 
event,  and  provide  against  it,  by  an  increase  of  premium.  ■  Selon  v.  Low, 
1  Johnson's  Cases,  1  ;  Skidniore  v.  Desdoily,  2  Johnson's  Cases,  77  ;  Ishel 


474  smith's  leading   cases. 

V.  Rhinelander,  Id.  120.  487  ;  Insurance  Co.  v.  Bathurst,  5  Gill  &  Johns. 
159  ;  Le  Roy  v.  United  Insurance  Co.,  7  Johnson,  343. 

It  would  seem  however,  that  if  there  be  any  thing  in  the  character  of  the 
goods,  or  the  source  from  which  they  are  derived,  of  a  nature  to  expose  them 
to  confiscation,  and  which,  not  being  within  the  usual  course  of  trade,  could 
not  have  been  anticipated  by  the  insurer,  it  will  be  necessary  to  disclose  it, 
in  order  to  avoid  a  concealment.  Thus  where  goods  were  insured  from 
Newport,  R.  I.,  to  Port  Passage,  in  Spain,  which  had  been  brought  to  New- 
port from  Laguira,  without  being  landed  in  any  part  of  the  United  States, 
the  concealment  of  this  fact  from  the  underwriters,  havirrg  caused  the  con- 
fiscation of  the  cargo,  by  bringing  it  within  the  scope  of  the  British  Orders 
in  Council,  was  held  to  vitiate  the  policy.  Under  the  construction  put  on 
these  orders  in  the  English  Prize  Courts,  by  the  omission  to  land  the  cargo, 
the  voyage  was  in  substance  rendered  direct  from  a  Spanish  colony  to  Spain  ; 
and  the  goods  consequently  became  liable  to  confiscation.  Kohne  v.  Ins. 
Co.  of  N.  A.,  6  Binney,  224.  It  is  true  that  the  risk  "was  produced  by  the 
•  Orders  in  Council,  a  public  document,  and  therefore,  to  be  taken  notice  of 
at  their  peril,  by  the  insurers,  but  the  particular  circumstances  which  ex- 
posed the  goods  to  this  risk,  not  being  ordinarily  incident  to  the  trade  between 
Newport  and  Spain,  nor  such  as  the  insurer  could  have  inferred  from  it, 
should  have  been  communicated  to  him.  In  like  manner,  it  was  held  in 
the  case  of  Stoney  v.  The  Union  Insurance  Company,  3  M'Cord,  387, 
that  an  insurance  at  and  from  Charleston  to  Marseilles,  was  vitiated  by 
the  omission  to  disclose  the  fact,  that  the  vessel  had  merely  touched  there, 
and  had  sailed,  in  the  first  instance,  from  Havanna,  which  was  then  a  belli- 
gerent port. 

In  Stocker  v.  Merrimac  Insurance  Co.,  6  Mass.  226,  will  be  found  a 
decision,  somewhat  difficult  to  reconcile  with  the  belter  law  laid  down 
in  Seton  v.  Low.  Insurance  had  been  effected  on  freight,  to  be  carried 
from  a  neutral  port,  and  a  total  loss  had  occurred,  in  consequence  of  a  con- 
demnation of  the  cargo,  as  the  property  of  a  belligerent.  While  the  court 
admitted  that  such  a  trade  was  lawful,  and  consequently  that  it  could  not 
vitiate  the  insurance,  if  both  parties  had  been  ignorant  at  the  time  it  was 
effected,  of  the  character  of  the  cargo,  thej^  still  were  of  opinion,  that  as  the 
facts  had  been  in  the  knowledge  of  the  assured,  the  failure  to  communicate 
them,  amounted  to  a  concealment.  This  was  of  course,  in  direct  opposition 
to  the  principle  of  the  New  York  decision  ;  which  held  that  the  insurers 
were  bound  to  suppose,  that  the  cargo  insured  continued  notwithstanding  the 
breaking  out  of  hostilities,  to  comprise  all  that  it  might  have  done  before. 
It  must,  however,  be  observed,  that  in  Stocker  v.  Merrimac  Insurance  Co., 
the  bill  of  lading  was  a  mere  cover  to  the  real  ownership  of  the  goods 
insured,  and  falsel_y  represented  the  property  to  be  in  the  owners  of  the 
vessel.  The  decision  may,  therefore,  be  sustained  by  an  application  to  the 
cargo  of  the  principal  asserted  with  regard  to  the  vessel  by  Story,  J.,  in 
the  case  of  Ohl  v.  The  Eagle  Insurance  Company,  4  Mason,  390,  where  it 
was  held,  that  every  policy  on  a  ship  implies  a  representation  that  her  papers 
disclose  the  true  owner. 

As  it  has  already  been  remarked,  where  the  insurers  are  aware  in  general 
terms,  that  a  fact  exists,  there  is  no  obligation  on  the  insured  to  communi- 
cate to  them  the  peculiar  circumstance  of  its  existence,  when,  from  the 


CARTER     V.     BOEHM.  475 

ordinary  course  of  things,  they  must  know  that  such  circumstances  are 
within  his  cognizance,  and  that  the  information,  if  desirable,  maybe  attain- 
ed, by  inquiry.  This  general  principle  was  carried  to  its  fullest  extent  in 
the  case  of  Alsop  v.  The  Commercial  Insurance  Company,  1  Sumner,  451. 
The  insured  had  there  stated,  that  a  vessel  which  sailed  after  the  one,  on 
which  insurance  was  requested,  had  already  arrived,  and  it  was  held  that, 
although  he  had  gone  so  far,  he  was  not  bound  to  go  further,  or  communi- 
cate the  time  of  her  arrival,  though  in  point  of  fact  she  had  been  in 
port  for  more  than  a  month.  But  when  the  character  of  his  particular 
information  is  such,  that  the  insured  could  not,  in  the  ordinary  course 
of  things,  have  been  known  to  possess  it,  he  will  be  obliged  to  antici- 
pate inquiry  by  disclosure,  although  there  may  have  been  a  previous 
general  notice  to  the  other  parties  to  the  contract.  On  this  principle,  it  was 
held,  in  Moses  v.  Delaware  Insurance  Co.,  1  Wash.  C.  C.  Rep.  387,  that 
the  insured  was  guilty  of  a  concealment,  in  not  apprising  the  insurers,  of 
the  particulars  received  by  a  private  letter,  of  a  severe  storm,  which  had 
occurred  at  the  port  whence  the  vessel  sailed,  although  it  was  known,  in 
general,  to  the  different  insurers  in  the  city  where  the  policy  was  sub- 
scribed, that  there  had  been  severe  gales,  throughout  the  whole  length  of 
the  course,  which  she  was  to  pursue  in  the  voyage.  S.  P.  Ely  v.  Hallet, 
2  Caines,  57.  Yet  the  same  reason  which  renders  it  unnecessary  to  com- 
municate to  the  insurer  facts  which  he  might  have  learnt  from  the  general 
course  of  trade,  will  apply  where  he  might  have  availed  himself  of  special 
sources  of  information  ;  Green  v.  Merchants'  Insurance  Co.,  10  Pick.  402  ; 
and  in  this  case,  it  was  held,  that  it  had  properly  been  left  to  the  jury  to 
determine  whether  the  insurers  were  acquainted  with  the  arrival  of  a  vessel 
which  was  shown  to  have  been  mentioned  under  the  head  of  Marine  Intel- 
ligence in  a  newspaper,  taken  at  their  place  of  business. 

There  are  two  important  general  principles,  which  will  often  be  found 
conclusive  of  the  question,  whether  the  omission  to  state  a  particular  fact,  or 
set  of  facts,  has  or  has  not  been  a  concealment.  In  the  first  place  there  can 
be  no  concealment,  if  the  existence  of  the  facts  be  of  necessity  implied  by 
the  terms  of  the  policy ;  and  in  the  next,  the  assured  is  not  bound  to  repre- 
sent to  his  assurer,  any  of  the  usual  or  accustomed  incidents  of  the  voyage, 
or  trade,  on  which  the  insurance  is  affected,  even  although  they  may  be,  in 
the  highest  degree,  material  to  the  risk.  Thus  where,  on  the  face  of  the 
policy,  the  insurance  is  effected  for  whomsoever  it  may  concern,  the  insurer 
need  not  be  told,  that  the  ostensible  is  not  the  real  owner,  of  the  property, 
nor  that  it  belongs  wholly  or  in  part,  not  to  a  neutral,  but  to  a  beligerent. 
Eking  V.  Scott,  2  Johns.  Rep.  157  ;  Buck  v.  Chesapeake  Ins.  Co.,  1  Peters, 
161.  In  like  manner,  as  nothing  need  be  told,  which  the  insurers  were 
bound  to  infer  from  the  nature  of  the  trade,  they  were  held  hable  under  a 
policy  of  insurance,  at  and  from  New  York  to  the  port  of  Sisal,  with  liberty 
to  proceed  to  one  other  port,  on  the  coast  of  Yucatan,  for  a  loss  which  hap- 
pened while  the  vessel  was  taking  in  her  lading,  at  a  bad  anchorage  in  the 
open  sea,  on  that  coast.  As  it  appeared  that  no  ports,  in  the  ordinary  sense 
of  the  term,  existed  at  the  places  of  destination,  and  as  the  ordinary  and 
necessary  course  of  commerce  had  been  pursued,  although  no  representa- 
tion had  been  made  of  these  facts,  the  policy  was  considered  as  valid. 
Delonguemere  v.  New  York  Fireman  Ins.  Co.,  10  Johns.  120.     Nor  will 


476  smith's   leading   cases. 

the  rights  of  those  interested  in  the  insurance,  be  compromised,  even  where 
there  exists  a  warranty,  or  representation  that  the  property  is  neutral,  by 
the  existence  of  false  papers  on  board  the  vessel,  representing  the  character 
of  the  property  as  belonging  to  a  belligerent,  provided  it  was  both  essential 
and  customary,  for  vessels  carrying  neutral  property  to  the  particular 
destination  expressed  in  the  policy,  to  be  provided  with  papers  of  that 
description.  Le  Roy  v.  United  Ins.  Co.,  7  Johns.  Rep.  343.  Livingston 
V.  Md.  Ins.  Co.,  7  Cranch,  536.  Calbreath  v.  Gracv,  I  Wash.  C.  C.  Rep. 
222. 

Whenever  it  becomes  the  duty  of  the  insured,  to  make  a  representation 
to  the  insurers,  it  must  be  made  with  the  utmost  minuteness,  and  with  the 
full  degree  of  care,  which  a  prudent  man  would  exert  in  providing  materials 
or  information,  for  the  transaction  of  his  own  business.  Even  if  a  know- 
ledge of  material  facts  be  avoided,  in  order  to  get  rid  of  the  obligation  to 
represent  them  to  the  insurer,  it  will  amount  to  a  concealment.  But,  if  all 
the  knowledge  obtained  on  honest  inquiry,  be  communicated  it  will  of 
course,  be  sufficient ;  and  the  fraud  or  negligence  of  the  informant  of  the 
insured,  will  not  affect  him,  if  he  honestly  relate  to  the  insurer,  the  facts  as 
he  believes  himself.  Biays  v.  Union  Ins.  Co.  1  W.  C.  C.  506.  Livings- 
ton V.  Dalafield,  3  Caines,  53.  When  however,  the  party  who  conceals,  or 
does  not  communicate,  circumstances  material  to  the  risk,  is  an  agent  of  the 
assured  himself,  the  policy  will,  in  general,  be  vitiated;  This  result  will 
necessarily  follow,  where  the  agent  has  been  employed  for  the  express 
purpose  of  effecting  the  insurance,  for  then  his  concealments  are  those  of 
the  insured.  Fitzherbert  v.  Mather,  1  Term,  12.  More  doubt  may  exist 
where  he  is  an  agent  for  other  purposes  ;  and  in  General  Ins.  Co.  v. 
Ruggles,  12  Wheaton,  408,  it  was  held  that  the  intentional  omission  of  the 
master,  to  communicate  intelligence  of  the  loss  of  the  vessel,  did  not  avoid 
a  policy  effected  by  the  owner  in  apparent  good  faith,  long  after  news  of 
the  disaster  might  have  been  conveyed  to  him.  This  decision  however,  is 
opposed  by  the  authority  of  the  King's  Bench,  in  England,  by  whom  an 
opposite  opinion  was  held  in  the  case  of  Gladstone  v.  King,  1  Maule  & 
Selwyn,  35. 

The  obligation  of  the  insured,  to  make  a  full  representation  to  the  insurers, 
does  not  terminate  on  his  communicating  to  them  at  the  time  of  his  appli- 
cation for  the  policy,  a  statement  of  the  material  facts  then  within  his 
knowledge.  If  subsequently,  and  before  the  policy  is  signed,  he  received 
farther  information,  he  is  bound  to  use  all  reasonable  diligence  to  make  it 
known,  or  to  revoke  his  order.  If  therefore,  he  finds  himself  subsequently 
to  hearing  of  the  loss  of  his  vessel,  at  the  same  port  with  the  vessel  by  which 
the  order  for  insurance  has  been  sent,  he'  is  bound  to  go  on  board  of  her, 
and  regain  possession  of  the  letter  containing  it,  or,  at  all  events,  to  write 
another  by  the  same  post,  giving  an  account  of  the  accident.  If  he  fail  to 
do  this,  the  insurance  will  be  invalidated,  although  other  orders  have  been 
sent,  in  consequence  of  which  the  insurance  would  probably  have  been,  at 
all  events  effected.  Watson  v.  Delafield,  2  Caines,  224;  2  Johnson,  526. 
All  however,  that  is  required  in  countermanding  the  order,  or  conveying  the 
new  information,  is  reasonable  diligence;  and  if,  after  exerting  this,  the' 
insurance  be  notwithstanding  effected,  the  insured  will  be  entitled  to  take 


CARTER     V.     BOEHM.  477 

advantage  of  it.   M'Lanahan  v.  Universal  Ins.  Co.,  1  Peters,  170.    Andrews 
V.  Marine  Ins.  Co.,  9  Johns.  R.  32. 

The  cons.tjuction  to  be  put  on  the  representations  made  by  the  insured, 
sometimes  becomes  difficult,  in  consequence  of  the  different  meaning 
attached  to  the  technical  terms  emploj^ed  in  the  place  where  the  request  on 
insurance  is  made,  and  that  in  which  the  insurance  is  actually  eifected. 
In  the  case  of  Hazard  v.  The  New  England  Insurance  Co.,  1  Sumner,  218, 
it  was  held,  that  under  such  circumstances,  the  terms  were  to  be  presumed 
to  have  been  employed  in  the  sense  in  which  they  were  understood  at  the 
place  of  effecting  the  contract ;  and  it  was  said  that  if  any  other  view  were 
adopted,  the  insurance  could  not  be  supported  for  any  purpose,  since  it 
would  follow  that  the  minds  of  the  parties  had  never  agreed  upon  the  same 
subject-matter.  But  the  Supreme  Court  of  the  United  Slates  subsequently 
held  this  point  the  other  way,  and  reversed  the  judgment  which  had  been 
given  below  in  favour  of  the  insurers.  Hazard  v.  The  New  England  Marine 
Ins.  Co.,  8  Peters,  557.  ^ 

It  is  hardly  necessary  to  say  that  the  rule  requiring  a  full  disclosure  of 
all  circumstances  known  to  be  peculiarly  relevant  to  the  risk,  applies  as 
much  to  the  case  of  a  re-assurance  as  of  one  originally  effected  ;  The  New 
York  Bowery  Fire  Insurance  Co.  v.  The  New  York  Fire  Insurance  Co., 
17  Wend.  359;  and  it  was  held  in  this  case,  that  where  the  motive  of  the 
company  seeking  to  be  re-insured,  was  a  desire  to  get  rid  of  the  risk  which 
they  had  undertaken,  in  consequence  of  information  received  by  them  as  to 
the  character  of  the  party  for  whom  thej^  were  insurers,  a  failure  to  com- 
municate this  fact  to  the  re-assurers,  amounted  to  a  material  concealment, 
and  avoided  the  policJ^ 

It  has  recently  been  decided  by  the  Court  of  Errors  in  New  York,  over- 
ruling an  opposite  determination  of  the  Supreme  Court  of  that  state,  that 
promissorj'"  or  executory  representations  are  unknown  to  the  law  of  insur- 
ance ;  and  that  in  the  absence  of  fraud  the  insured  is  not  answerable  for 
any  thing  more  than  the  truth  of  his  statements,  as  compared  with  the  facts 
actually  existing  at  the  time  of  effecting  the  insurance.     Alston  v.  The 
Mechanics  Fire  Insurance  Co.,  1  Hill,     ;  4  id.  329.    The  same  ground  was 
taken  in  Massachusetts,  in  the  case  of  Bryant  v.  The  Ocean  Insurance  Co., 
22  Pick.  200,  and  Whitney  v.  Haven,  13  Mass.  172,  where  it  was  held, 
that  a  representation  as  to  the  future,  could  only  vitiate  the  policy  on  the 
ground  of  fraud,  in  stating  the  expectations  of  the  insured  at  the  time  whea 
it  was  made,  since  if  put  on  the  footing  of  a  positive  undertaking,  it  must 
be  rejected  as  not  entering  into  the  final  and  written  contract  between  the 
parties.     There  can  be  no  doubt  that  a  mere  statement  of  matter  of  belief 
or  expectation,  does  not  bind  the  maker  to  any  thing  more  than  its  truth  as 
made.     Catlin  v.  The  Springfield  Fire  Insurance  Co.,  1  Sumner,  434  ; 
Allegro  V.  Maryland  Insurance  Co.,  2  Gill  &  Johnson,  136;  but  on  the 
other  hand,  it  would  seem,  notwithstanding  the  decisions  above  cited,  that 
if  a  continuing  or  executory  representation  undertake  to  describe  the  risk 
upon  which  an  insurance  is  requested,  it  will  be  binding  in  the  future,  as 
well  as  the  present,  and  the  insurer  will  not  be  liable,  unless  the  subject- 
matter  of  the  contract  prove  to  be  such  as  he  has  been  led  to  anticipate.    Thus 
in  the  case  of  an  insurance  against  fire,  where  the  building  had  been  repre- 
sented as  unconnected  on  one  side  with  any  other,  no  doubt  seems  to  have 


478  smith's   leading   cases. 

been  entertained  by  the  court,  that  the  subsequent  erection  of  another  build- 
ing adjoining  the  other  side,  with  the  consent  or  by  the  act  of  the 
insured,  would  have  vitiated  the  insurance  ;  and  the  doctrine  was  broadly 
asserted,  that  where  the  estimate  of  the  risk  depends  upon  the  continuance 
of  the  material  circumstances  represented  to  the  insurer,  these  are  not  to  be 
altered  to  his  detriment  by  any  act  of  the  insured.  Stetson  v.  Massachusetts 
Insurance  Co.,  4  Mass.  330. 

The  general  current  of  Engh'sh  authority  would  also  appear  to  support 
the  proposition,  that  wherever  a  representation  is  continuous  or  promissory 
in  its  character,  it  must  be  made  good  in  the  future,  as  well  as  the  present, 
at  least  so  far  as  the  means  of  the  party  insured  will  extend.  Edwards  v. 
Fostner,  1  Campbell,  530  ;  Denniston'^v.  Lillie,  4  Bligh.  202. 

It  is,  however,  admitted  in  Massachusetts,  that  there  may  be  cases  in 
which  the  statements  of  the  insured  as  to  the  future,  if  referred  to  or  inserted 
in  the  policy,  although  not  amounting  to  warranties,  will  be  regarded  as 
promissory  representations,  without  a  substantial  compliance  with  which 
the  insurers  will  not  be  liable.  Houghton  v.  The  Manufacturers  Mutual 
Fire  Insurance  Co.,  18  Metcalf,  114. 

All  facts  which  the  insured  undertakes  to  represent,  should  be  repre- 
sented with  substantial  correctness ;  bivt  as  has  been  already  stated,  no  fact 
need  be  represented,  which  is  not  material  to  the  risk.  This  materiality 
should  be  judged  of,  by  the  state  of  the  facts  as  existing  at  the  time,  and 
not  by  the  criterion  of  the  final  result.  Marshall  v.  Union  Ins.  Co.,  2  Wash. 
C.  C.  R.  359.  It  follows  from  this  principle,  that  when  it  could  not  be 
anticipated,  that  a  circumstance  would  aflbrd  ground  for  a  decree  of  con- 
demnation, and  it  has  in  fact,  been  a  mere  pretext  for  confiscating  the 
property,  and  not  the  cause  ;  it  cannot  be  treated  as  having  been  material 
or  necessary  to  be  disclosed,  although  the  sentence  of  the  foreign  Admiralty 
Court,  leading  to  the  total  loss  of  the  property  insured,  pretends  to  be  based 
upon  it.  Sperry  v.  Delaware  Ins.  Co.,  2  W.  C.  C.  R,  243.  Earl  v.  Shaw, 
1  Johns.  Cases,  315.  Duguet  v.  Rhinelander,  2  Johnson's  Cases,  476. 
Still  however,  the  inquiry  as  to  the  materiality  of  the  cause  assigned,  is  to 
be  confined  to  the  law  or  custom  of  the  country  by  which  the  condemna- 
tion has  been  effected,  as  it  exists  de  facto,  and  if  the  circumstance  con- 
cealed from  the  insurer,  come  within  the  scope  of  that  law,  as  declared  by 
previous  decisions  or  ordinances,  it  cannot  be  shown  to  be  immaterial,  by 
proving  the  injustice  of  the  decision,  or  the  inconsistency  of  the  ordinances, 
with  the  law  and  usages  of  nations.  Kohne  v.  Ins.  Co.  N,  A.  Sperry  v. 
Delaware  Ins.  Co.,  2  Wash.  C.  C.  Reports,  249.  Marshall  v.  Union  Ins. 
Co.,  2  W.  C.  C.  R.  357. 

Matter  of  opinion  is  said  not  to  be  material ;  and  this  doctrine  has  been 
carried  to  the  extent  of  ruling,  that  even  where  falsely  expressed,  it  will 
not  vitiate  the  policy.     Clason  v.  Smith,  3  Wash.  C.  C.  Rep.  156. 

And  in  general  it  is  obvious,  that  although  the  mere  circumstance  that  a 
fact  has  been  misrepresented  by  the  insured,  must  afTord  some  evidence 
that  it  was  material  to  the  risk,  and  relied  on  as  such  by  the  insurer,  yet 
that  if  its  immateriality  be  notwithstanding  established,  the  insurance  will 
not  be  vitiated  by  a  misstatement  which  can  have  had  no  effect  on  the 
formation  of  the  contract.  Curry  v.  Com.  Ins.  Co.,  10  Pick.  535 ; 
Strong  V.  Manufacturers  Ins.  Co.  Id.  40;  Farmer's  Insurance  and  Loan  Co.  v. 


CARTER     V.     BOEHM.  479 

Snyder,  16  Wend.  481 ;  Tyler  v.  iEtna  Ins.  Co.,  12  Id.  507 ;  S.  C,  in  Error, 
16  Id.  385;  Flinn  v.  Headlam,  9  B.  &  C.  693.  But  it  is  equally  well 
established,  that  whether  the  misrepresentation  be  wilful,  or  the  mere  result 
of  omission,  or  accident,  it  will  if  material,  equally  avoid  the  insurance. 
Burrit  v.  The  Saratoga  Insurance  Co.,  5  Hill,  188  ;  Stetson  v.  Massachusetts 
Insurance  Co.,  4  Mass.  330  ;  Union  Insurance  Co.  v.  Strong,  Harper,  235; 
Burrit  V.  The  Saratoga  Mtitual  Fire  Insurance  Co.,  5  Hill,  188.  And  in. 
the  case  last  cited,  a  declaration  in  the  policy  that  any  misrepresentation  or 
concealments  in  the  answers  to  certain  questions  should  avoid  the  insurance, 
was  held  to  be  a  waiver  of  the  question  of  the  materiality  of  the  statements 
made  in  reply ;  and  it  was  decided,  that  even  if  they  were  not  considered  as 
warranties,  the  insured  could  not  recover  unless  they  Avere  substantially 
correct,  whatever  might  be  their  actual  bearing  on  the  risk  insured. 

Under  ordinary  circumstances,  however,  the  burden  of  proof,  rests  on 
the  insurer,  both  as  it  regards  establishing  the  existence  of  the  misrepresen- 
tation or  concealment,  and  its  materiality  to  the  risk.  Fisher  v.  The  New 
England  Ins.  Co.,  15  Pick.  310.  But  although  tliis  was  admitted  in  the 
case  of  Elkin  v.  Janson,  13  M.  &  W.  655,  it  was  there-  also  determined, 
that  this  might  be  done  in  some  instances  with  regard  to  a  concealment,  by 
merely  proving. the  nature  of  the  fact  concealed  ;  as  for  instance,  that  the 
ship  had  been  so  long  missing,  that  no  reasonable  man  would  have  thought 
of  insuring  her  at  the  premium  given. 

In  the  early  case  of  Hodgson  v.  Maine  Insurance  Co.,  5  Cranch,  100, 
it  was  decided  by  the  Supreme  Court  of  the  United  States,  that  to  avoid  a 
policy  on  the  ground  of  misrepresentation,  it  must  be  averred  in  pleading, 
or  established  in  evidence,  to  be  fraudulent,  or  material  to  the  risk  incurred, 
and  it  was  farther  held,  that  matter  material  to  the  contract,  as,  for  instance, 
the  tonnage  of  a  ship,  or  other  particulars,  showing  merely  the  actual  value 
or  amount  of  property  insured,  would  not  necessarily  be  material  to  the 
risk,  nor  affect  the  assurance,  unless  as  evidence  of  actual  fraud.  Yet  it 
would  seem,  that  the  question  should  rather  be  as  to  the  materiality  of  the 
statement,  to  all  or  any  of  the  grounds  which  can  reasonably  be  taken  into 
view  by  the  underwriter,  in  forming  his  judgment  as  to  the  expediency  of 
entering  into  the  contract,  or  the  amount  of  premium  to  be  demanded. 
Howell  V.  Cincinnati  Insurance  Co.,  7  Hammond,  276.  In  this  point  of 
view,  the  actual  value  of  the  property,  as  compared  with  the  value  insured, 
may  be,  in  point  of  fact,  material  as  tending  to  furnish  the  owner  with  a 
powerful  motive  for  desiring  or  fearing  its  destruction,  and  thus,  even  in 
the  absence  of  any  criminal  intent  on  his  part,  inducing  him  to  exert  a 
greater  or  less  degree  of  diligence,  for  its  preservation.  And  in  Carpenter 
V.  The  American  Insurance  Co.,  1  Story,  C.  C.  R.  56,  it  was  held,  that 
where  the  defendants  had  refused  to  effect  the  insurance,  on  the  ground  that 
the  premises  were  already  insured  by  another  company,  within  four  thou- 
sand dollars  of  their  value,  and  altered  their  determination  upon  a  statement 
on  the  part  of  the  owner,  that  recent  additions  had  been  made,  by  which 
their  value  was  increased  by  the  amount  often  thousand  dollars,  the  untruth 
of  this  assertion,  whether  wilful  or  not,  was  material  to  the  insurance,  and 
avoided  the  right  of  recovery  on  the  policy. 

In  general,  the  question  of  the  materiality,  or  immateriality  of  a  conceal- 
ment, is  one  of  fact  for  the  jury,  not  of  law  for  the  court;  and  if  withheld 


480  smith's  leading   cases. 

from  the  jury,  or  decided  for  them  by  the  judge  trying  the  case,  it  will  be 
ffround  for  a  reversal  in  error.    M-Lanahan  v.  Universal  Ins.  Co.    Livings. 

O  O 

ton  V.  Maryland  Ins.  Co.,  6  Cranch,  276.  Livingston  v.  Rudens,  idem. 
338.  Livingston  v.  Delafield,  1  Johns.  522.  New  York  Firemen's  Ins. 
Co.  V.  Walden,  12  Johns.  538.  Tyler  v.  yEtiia  Insurance  Co.,  12  Wend. 
307.  In  the  case  of  Kohne  v.  Ins.  Co.  of  N.  A.,  it  would  seem  howevcf  to 
have  been  supposed,  that  in  certain  cases  the  question  of  materiality  might 
be  one  rather  of  law  than  of  fact:  and  such  would  seem  certainly  to  be  the 
the  case,  when  it  turns  on  the  construction  even  of  a  foreign  ordinance 
or  law. 

The  question  of  the  admissibility  in  evidence  of  the  opinion  of  men  con- 
versant with  the  rates  of  insurance,  to  aid  the  jury  in  determining  the 
materiality  of  a  concealment  or  misrepresentation,  was  presented  in  the  case 
of  the  Jefferson  Insurance  'Co.  v.  Cotheal,  7  Wend.  72.  The  question 
arose  on  the  point,  whether  the  erection  of  a  boiler-house  on  the  outside  of 
the  steam  saw  mill  insured,  was  material  to  the  risk  ;  and  it  was  held,  that 
even  if  the  testimony  of  witnesses  acquainted  with  the  erection  and  manage- 
ment of  similar  mills,  could  be  received  as  to  the  effect  likely  to  be  produced 
by  5uch  a  change  in  the  arrangement  of  the  building,  yet  that  the  opinion 
of  persons  who  had  no  particular  knowledge  on  the  subject,  except  from 
their  business  as  insurers,  was  not  admissible  to  the  point,  that  the  risk  was 
thereby  increased,  and  that  they  would  not  have  insured  the  building  thus 
altered,  for  the  same  premium  as  when  in  its  original  condition.  The 
only  instance  in  which  evidence  merely  resting  in  opinion  is  admissible, 
was  said  to  be,  that  of  a  question  of  science  or  art,  where  the  jury 
could  not  be  presumed  competent  to  arrive  at  a  proper  determination  by 
the  unaided  exercise  of  their  own  judgment  on  the  facts.  The  same 
general  doctrine  was  again  asserted,  although  on  a  matter  not  relating  to 
insurance,  in  the  case  of  Norman  v.  Wells,  17  Wend.  136.  But  the 
opinions  of  witnesses,  as  to  the  materiality  of  the  facts  concealed,  was 
received  without  objection,  in  the  Circuit  Court  of  the  United  States,  in  the 
cases  of  Marshall  v.  Union  Ins.  Co.,  2  Wash.  C.  C.  R.  358,  and  Moses  v. 
Delaware  Ins.  Co.  1  Wash.  C.  C.  Rep.  380. 

H. 


[*2S7]  *EICE  V.  SnUTE. 


EASTER,  1  GEO.  3.— C.  E. 
[urrOKTED    BURR.    2611.] 

In  an  action  ex  contractu,  the  non-joinder  of  a  co-contractor  as  defendant  can  be  taken 
advantage  of  by  plea  in  abatement  only. 

This  was  an  action  brought  against  one  partner  only,  upon  a  partnership 
account. 


RICE    V.    SHtJTE.  481 

At  the  trial,  (which  was  before  Mr.  Justice  Bathurst,)  the  defendant 
gave  evidence  that  there  was  another  partner,  named  Cole,  who  was  not 
joined  in  the  action,  as  a  defendant  ;  which  he  ought  to  have  been,  as  the 
plaintiff'  knew  the  fact  to  be  so. 

Whereupon  .the  plaintiff  was  nonsuited. 

Mr.  Serjeant  Burland  moved,  upon  the  5th  of  this  instant.  May,  1770, 
on  behalf  of  the  plaintiff,  to  set  aside  this  nonsuit,  and  to  have  a  new  trial. 

It  appeared  upon  the  Judge's  report  that  the  plaintiff"  could  not  but  know 
of  the  partnership  :  for  that  all  the  letters  showed,  and  it  was  even  stated  upon 
the  very  account  itself,  "  that  Cole  and  Shute  were  partners."  So  that  the 
plaintiff  was  not  surprised  by  the  defendant's  producing  this  evidence  of  a 
partnership  :  on  the  contrary,  he  had  brought  his  action  in  this  mariner 
against  the  present  defendant  alone,  with  a  dehberate  design  to  take  some 
advantage  of  him. 

The  Serjeant's  objection  was,  that  this  matter  could  not  be  given  in  evi- 
dence, but  ought  to  have  been  pleaded  in  abatement. 

The  court  gave  him  a  rule  to,  show  why  the  nonsuit  should  not  be  set 
aside,  and  a  new  trial  had. 

*]V[r.  Serjeant  Davy  now,  on  this  fourteenth  of  May,  showed       ^ 
cause.  [  "288  J 

He  said,  it  would  be  very  mischievous,  if  a  person  having  a  demand 
upon  a  partnership  should  be  left  at  liberty  to  cull  out  one  particular  partner 
and  bring  an  action  against  him  alone,  leaving  out  the  rest  of  the  i^artners. 

In  the  case  of  Boson  v.  Sandford,  2  Salk.  440,  the  court  held,  "  that  all 
the  part-owners  of  the  ship  must  be  joined  :"  and  "they  gave  judgment  for 
the  defendant,  because  all  the  owners  were  not  joined. 

This  may  undoubtedly  be  pleaded  in  abatement :  but  it  is  not  necessary 
that  in  all  cases  whatsoever  it  must  be  pleaded  in  abatement.  In  some 
cases,  and  under  certain  circumstances,  and  particularly  where  it  is  within 
the  plaintiff^'s  own  knowledge  "  that  there  are  more  partners,"  it  may  be 
given  in  evidence  without  pleading  it  in  abatement. 

Here  the  plaintiff'  knew  that  Cole  was  partner  with  the  defendant.  He 
was  not  surprised  by  this  evidence  ;  he  acted  with  his  eyes  open,  and  with 
a  deliberate  design  to  take  an  unfair  advantage. 

If  the  defendant  had  pleaded  in  abatement,  he  must  have  shown  who  his 
partners'  were:  and  then  the  plaintiff^,  being  thus  informed  who  they 
were,  must  have  brought  a  new  action  against  them  all.  But  in  the  pre- 
sent case  the  plaintiff" already  knew,  of  his  own  previous  knowledo-e,  "  who 
were  the  partners  ;"  and,  therefore,  he  was  as  much  obliged  to  brino-  his 
action,  originally  against  them  all,  as  he  would  have  been  obliged  to  brino- 
a  new  action  against  them  all,  if  he  had  come  at  that  knowledge  only  by 
the  defendant's  plea  in  abatement.  As  soon  as  he  knows  who  the  partners 
are,  he  is  obliged  to  bring  his  action  against  them  all,  however  he  may  come 
at  this  knowledge.  He  cannot,  after  haying  obtained  this  knowledge,  select 
one,  andomit  the  rest.  Its  being  pleadable  in  abatement  shows  that  he  can- 
not omit  any  one,  if  in  fact  there  are  more  than  one.  And  if  he  does  know  it 
before  he  brings  his  action,  it  is  more  expeditious  and  more  reasonable,  that 
he  should  join  them  all  at  first. 

And  though  it  may  have  been  heretofore  holden,  "that  it  could  not  be 

Vol.  I 31 


482  smith's  leading  cases. 

r^28^1  given  in  evidence;"  yet  that  was  only  an  ?^opinion  at  Nisi  Prius; 
L  ■  .-'  tliere  never  has  been  any  such  determination  of  this  court,  or  any 
where  else  in  your  lordships'  time.  Arid  if  it  has  been  ever  holden «'  that 
it  was  sufficient  to  make  the  acting  partners  defendants,"  the  rule  has  been 
since  established,  "  that  all  must  be  joined  if  known." 

He,ther-efore,  prayed  that  the  nonsuit  might  be  recorded. 

Serjeant  Burland  was  proceeding  to  support  his  rule,  but  was  stopped  by 
Jjord  Mansfield,  as  not  being  necessary. 
Lord  Mansfield — 

To  be  sure  a  distinction  is  to  be  found  in  the  books  between  torts  and 
assumpsit — "  that  in  torts,  all  the  trespassers  need  not  be  made  parties  ;  but  in 
in  actions  upon  contract,  every  partner  must  be  made  a  defendant."  Many 
nonsuits,  much  vexation, and  great  hinderance  to  justice,  have  been  occasioned 
by  this  distinction.  It  must  ha've  been  introduced  originally  from  the 
semblance  of  convenience,  that  there  might  be  one  judgment  against  all 
who  were  liable  to  the  plaintiff"'s  demand.'  But  experience  shows  that 
convenience,  as.  well  as  justice,  lies  the  other  way.  All  contracts  with 
partners  are  joint  and  several  :  ever)'  partner  is  liable  to  pay  the  whole. 
In  what  proportion  the  others  should  contribute,  is  a  matter  merely  among 
ihemselves.-  A  creditor  knowswith  whom  he. dealt  :  but  he  does  not  know 
tbeisecret.  partner.  Hemay  be  nonsuited  twenty  .times  before  he  learns 
them. all  ;  or  driven  to  a  suit  in  equilj'-,  for  a  discovery,  '« who  they  are." 
It  is  eruel  to  turn  a  creditor  round,  and  make  him  pay  the  whole  costs  of 
the  nonsuit,  in  favour  of  a  defendant  who  is  certainly  liable  to  pay  his 
whole  demand,  and  who  is  not  injured  by  another  partner's  not  being  made 
defendant ;  because,  what  he  pays,  he  must  have  credit  for,  in  his  account 
with  the  partnership.  Upon  this  point,  I  very  early  consulted  the  three 
other  judges  qf  this  court,  Mr.  Justice  Denison,  Mr.  Justice  Foster,  and 
Mr.' Justice  Wilmot.  They  were  all  of  opinion,  "that  the  defendant  ought 
to  plead  it  in  abatement ;"  he  then  must  say  "  who  the  partners  are."  If 
the  defendant  does  not  take  advantage  of  it  at  the  beginning  of  the  suit, 
and  plead  it  in  abatement,. it  is  a  waiver  of  the  objection.  He  ought  not  to 
be  permitted  to  lie  by,  and  put  the  plaintiff  to  the;delay  and  ex:pense  of  a 
^^^  trial,  and  ?^then  set  up  a  plea  not  founded  in  the  merits  of  the  cause, 
U  -^  but  on  the  form  of  proceeding.  The  old  cases  make  no  distinction 
between  the  plaintiff's  knowing  of  a  partnership  or  not.  Here,  indeed,  the 
■plaintiff  knew  of  it ;  but  the  present  defendant  was  the  person  with  whom 
he  transacted.  ■  He  must  be  allowed  this,  in  his  account  with  the  other  part- 
ners. No  injustice  was  done  to  the  defendant,  by  allowing  the  plaintiff  to 
recover  :  but  great  injustice  is  done  to  the  plaintiff,  by  allowing  the  nonsuit 
to  stan-d  ;  and,  what  is  still  worse,  a  mode  of  litigation  allowed  which  is 
highly  inconvenient. 

Mr.  Justice  ./5s/on  concurred. 

He  said,  that  as  his  lordship  had  gone  through  the  whole,  he  would  not 
repeat  what  had  been  already  mentioned  :  but  he  observed,  that  there  was 
no  necessity  for  admitting  it  to  be  given  in  evidence  ;  nor  any  inconve- 
nience in  pleading  it  in  abatement ;  and  the  not  pleading  it  in  abatement 
seemed  to  be  a  waiver  of  the  objection, 

The  case  in  which  Mr.  Justice  Yates  tried  the  cause  was  a  contract 
about  wood  :  but  it  was  never  decided  here  by  the  court. 


RICE    V.     SHUTE. 


483 


He  took  notice,  that,  upon  a  joint  bond,  the  action  cannot  be  brought 
against  one  of  the  obligors  wily.  This  was  the  point  of  a  case  in-  Michael- 
niasTerm,  1750,  21  G.  2,  in  this  court;  which  was  argued  by  the  now 
-Lord  Lifford  :  the  name  of  it  was  Horner  v.  Moor.f  -[tl  have  a  note  of  thrs 
case.  "Non  e&t  flictiim"  was  pleaded  ;  and  the  jury  found  it  io.be  the 
deed  of  both.^  Mr;  Scrjeanf  Hewitt  moved  in  arrest  of  judgment,  upon  the 
face  afthedtclaration..  He  acknowledged,  that  it  could  not  have  ".been 
moved  in  arrest  of  judgment,if  it  had  not  .appeared  upon  the  face  of  .the 
declaration  ;  but  it  there  appeared,  that  both  had  sealed  the  obligation,- and 
both  loue  living.  He  owned,  that  ifU  had  not  appeared  upon  the  face  of 
the  declaration,  it  must  have  been  averred.  Mr.  Ford,  who  was  for  the 
plaintiff,  gave  it  up,  and  the  judgment  was  arrested.] 

Mr.  Justice  Willes  and  Mr.  Justice  Blackstone  being  both  of  the  same 

opinion,  '  ,         i  •  -j 

The  whole  court  were  unanimous  that  the  nonsuit  ought  to  be  set  aside, 

and  a  n&w  trial  had. ,-,  '  ^  "  - 

Rule  made  absolute. 

*rN.  R  There  was  a  case  solemnly  argued  and  determined  in  p*2911 
the  Common  Pleas  upon^this  point,  in  Easter  Term,  1774,  14  G.^,  .L 
a-nd  they:  hekU'upon' the  authority  even  of  cases  in  the  year  books,  "that  it 
should  be  pleaded  in  abatement."  The  name  of  it  was  Abbot  v.  .Smith. 
Afteravgument,  it  stood  for  th.e  6pimon  of  the  co.urt. :  and  Lord  Chief  Jus- 
s'tice  De  Groy. afterwards  delivered  their  opinion.  He  observed,  that  this 
wa5  not  a' novel  doctrine  or  invention;'  in  proof  of  which  he  cited  Tnn.  9 
E.-4,  24,  b.,  10  E.  4,  5,  a.,  et  post.  ;  36  H.  6.  38  ;  and  Brook,  Brief  37. 
And  he  took  notice,  that  this  case,  just  now  reported  (of  Rice  v.  Shute,) 
went  on  the  general  principle ^hat  the  court  then  went  upon  in  the  case  of 
Abbot  v."'  Smith, 

i  was  favoured  with  an  account  of  this  case  of  Abbot  v.  Smith,(a)  by  a 
learned  Judge  of  the  Court  in  which  it  was  determined,] 


"  Accordingly  it  has  ever  since  been  Judge  Washington,  in  Jordan  v.  Wi!- 

hekl   that   the    non-ioindcr   of  a   joint-  kins,    3   VVashinofton,    C.'  C.    110,   that 

contractor,  as  defendant  in  an  action  ex  where  the  declaration   is  general,  and 

contractu,  must,  if  advantage   is  to  be   -  there  is  no  hill  of  particulars,  so  that  the  • 

taken  of  it  -at  all,  be  pleaded  in  abate-  defendant  has  no  notice  that  he  is  sued 

n>ent.  ."[S. -P.  Zeile  and  Becker  v.  Ex-  on  a  joint  contract,  non-joinder  is  ground 

ecntorsof  Campbell,  2  Johnson^s  Cases,  of  non-suit,  is   expressly  ovqrruled   by 

.3S2;  Seymour  V.  Minturn,  17  Johnson,  Chief  Justice   Marshall  iii-  Barry  y. 

.  1S9;  Williams  v.  Allen,  7  Cowen,  316;.  Foyles,  1   Peters,   311;    and    is   again 

Gay  V.  Carv,  &  id.  44  ;  Witmer  et  al.  v.  overruled  in  Grubb  v-  Folfz,  4  Watts  & 

Schlatter  etal.,  15  Sergeant  &  Rawle,"  Sergeant,  549.     If  the  executor  of  one 

I50;S.  C.  2  Rawle,  359;  Moore's  Ex-  of  two  obligors  be  sued,  the,  fact  that 

ecutors  v.  Russell,  2  Bibb,  442;  Robin-  the  other  obligor  survives. or  survived 

son  V.  -Robinson,  1  Fairfield,  240  ;  Wins-  .  the  testator,  cannot  be  given  in  evidence 

low  v>  Memll,  2   id.  127;  Barnett  &  tinder  the  general   issue,  or  the  plea  of 

Wooltblk   v.    WatsOn    &   Urquhart,    1  payment  or  of  covenants  performed,  &c. ; 

W-ashington,.o72;  &c.     The  opinion  of  but  if  the  objection  appear  oh  the  record 

(a)  See  2  Bl.  947,  where  this  case  is  r^orted.  ... 


484 


SMITH     S     LEADING     CASES. 


it  is  fatal  to  the  action,  and  if  it  appear 
not  in  the  declaration,  it  should  be  put 
on  tlie  record  by  plea  in  abatement,  or 
rather  by  special   plea  in  bar.     Geddis 
and  another  v.  Hawk,  Executorof  Hawk, 
10  Sergeant  &  Ravvle,  33 ;  Ilorton  and 
Wife   V.   Cooke,    3  Watts,    40.]     The 
authorities  on  this  subject  are  cited,  and 
the  subject  itself  elaborately  discussed, 
'm  the  notes  to  Cabell  v.  Vaughan,  1 
Wms.  Saund.  291,  where  it  is  remarked 
that  the   observation  of  Mr.  J.  Aston, 
respecting'  joint  bonds,  is  too  large,  and 
that    he    must    be    undert^tood    to  have 
meant  that  the   action  cannot  bo  main- 
tained against  one  co-obligor,  iflJie  other 
plead  in  abatement,  e.\cept   indeed   in 
such  a  case  as  that  of  Moore  v.  Horner, 
as  explained  by  the  reporter,  where  llie 
fact  that  two   persons,   both   of  whom 
executed  the  bond,  are  still   living  ap- 
pears on  the  face  of  the    record.     [If 
the    declaration    does    not    show   that 
others  were  jointly  bound,  but  on  oyer, 
the  deed  contains  the  names  of  others 
as   co-obligors,  you   cannot  demur,  be- 
cause from  the  instrument  itself  as  set 
forth  on  oyer,  it  does  not  appear  that 
the   others  sealed :  you   must  therefore 
by.  plea  in   abatement    aver   that   the 
others  sealed,  and  in  such  case  must  add 
that  they  are  still  alive,  for  every  plea 
in  abatement  is  taken  strictly  against 
him    who    pleads    it;    see   Daucliy   v. 
Smith  &  Olmsted,  Kirby,  106;  M'Ar- 
thur  V.  Ladd,  5  Hammond's  Ohio,  514  : 
Morgan  v.  Crim,  1  Monroe,  129  ;  Allen 
V.   Lucket,  3  .T.  J.   Marshall,  164  :   but 
where  the  fact  that  another  was  jointly 
bound  and  liable,  whether  by  deed,  sim- 
ple contract,  or  matter  of  record,  appears 
on  the  fiice  of  the  declaration,  the  better 
opinion  is,  against  the  view  of  Mr.  Ser- 
jeant Williams,  that  the  other  is  pre- 
sumed to  be  still   living,  and  that   the 
declaration   may  be  demurred  upon,  or 
judgment  arrested,  or  reversed  on  error, 
■unless  the  plaintiff  aver  in  his  declara- 
tion that  the  other  is  dead.     In  Oilman 
V.  Rives,  10  Peters,  298,  it  was  decided, 
that  in  suits  on  recognizances,  and  judg- 
ments, .  and   other   matters    of   record, 
where  one  is  sued,  and  the  writ  or  de- 
claration shows  that  another  was  jointly 
bound,  it  is  fatal  on  demurrer  or  arrest 
of  judgment,  if  the   plaintiff  does  not 
aver  that  the  other  is  dead  ;  though  a 
distinction  is  suggested  between  records 
and  deeds.     In  Virginia,  it  has  repeat- 
edly been  decided,  that  in  suits  on  bonds, 
where  the  declaration  shows  that  ano- 


ther was  jointly  bound   and   does   not 
aver  that  be  is  dead,  it  is  bad  on  de- 
murrer or  writ  of  error:  Lettwich  and 
others  v.  Berkley,  1  Henning  &.  Mun- 
ford,  61;    Saunders  v.  Wood,  1   Mun-- 
ibrd,  406;   Newell   v.  Wood,  id.  555; 
Newman    v.  Graham,    3    id.  167:   and 
see  Winslow  et  al.  v.  Commonwealth, 
2  Henning  &  Munford,  459,  of  which 
the    syllabus   is   wrong.     And    in    the 
case  of  promissory  notes,  it  was  decided 
by  C.  J.   Mbi.len,  in  the  case  of  Har- 
wood  et  al.  v.  Roberts,  5  Greenleaf,  441, 
that  when  the  declaration  shows  that 
more  were  parties  than  are  sued,  the 
plaintiff  must  allege    that   the   others 
are  dead,  or  judgment  will  be  reversed  : 
and  in  case  of  simple  contracts  gener- 
ally, tiie  dictum  of  Chief  Justice  Mar- 
shall in  Barry  v.  Foyles,  1  Peters,  311. 
317,  is,  that  "  if  the  declaration  were  to 
show  a  partnership  contract,  the  judg- 
ment against  the  single  partner  could  not 
be  sustained."    There  are  however,  seve- 
ral decisions  and  opinions  to  the  contrary. 
In  Mackall  v.  Roberts,  3  Monroe,  130,  in 
an  action  on  a  joint  note  against  one  of 
■  the  makers,  the  court  below  on  demur- 
rer gave  judgment  for  the  defendant ; 
and  on  writ  of  error,  this  was  reversed, 
the  court  saying  that  in  cases  where  all 
the  persons  are  not  joined  as  defendants, 
who  ought  to  have  been  joined,  the  law 
is  well  settled  that  no  advantage  can  be 
taken  of  the  non-joinder,  but  by  plea  in 
abatement.     In  Nealley  v.  Moulton,  12  . 
New  Hampshire,  485,  tlie  argument  of 
the  court  is,  that  in  no  case,  not  even 
where  the  fact  that  there  is  a' joint-con- 
tractor living  appears  on  the  face  of  the 
pleadings,  can  the  non-joinder  be  taken 
advantage  of,  otherwise  than  by  plea  in 
abatement.     In  Lillard  v.  The  Planters' 
Bank,  3  Howard's   Mississippi,  78,  it  is 
admitted  that  if  it  appear  in  the  decla- 
ration   that   another  party  jointly  con- 
tracted and  is  still  living,  the  defendant 
may  demur  ;  but  it  is  said  that  if  it  does 
not  appear  there  that  he  is  still  living, 
there  must  be  a  plea  in  abatement;  and 
the   dictum    in   Geddis   and   another  v. 
Hawk,  10  Sergeant  &  Rawle,  33.  38,  is 
to  tlie  same  effect.  In  Burgess  v.  Abbott, 
1   Hill's   N.   Y.  476,  which   was   debt 
against  one,  on  a  judgment  of  a  Court  of 
another  state  against  two,  where  it  did 
not  appear  expressly  that  the  other  was 
living,  on  general  demurrer,  it  was  de- 
cided in  the  Supreme  Court  by  Cowen, 
J.  "not  without  some  hesitation,"  that  ob- 
jection could  not  be  taken  by  demurrer 


RICE     V.     S  H  U  T  E. 


485 


unless  it  appetirod  in  the  pleadings  that 
the  otlier  was  alive ;  and  he  thought  tliere 
could  be  no  difference  between  scire 
facias  on  a  record,  and  debt  on  a  record  : 
and  the  judgment  in  favour  of  the  plain- 
tiffs in  this  case  was  aihrmcd  in  the  court 
of  errors;  one  senator  holding  that  the 
objection  could  be  taken  advantage  of, 
only  by  plea  on  abatement,  and  the 
Chancellor  holding  that  though  the 
objection  might  be  taken  on  special  de- 
murrer, it  could  not  on  general  demur- 
rer, unless  it  appeared  affirmatively  that 
the  other  joint-contractor  was  alive,  or 
unless  in  case  of  scire  facias  on  a  re- 
cord ;  Burgess  v.  Abbott,  6  id.  135.  In 
The  State  of  Indiana  v.  Woram,  id.  83, 
it  was  decided  by  the  Supreme  Court 
that  the  non-joinder  of  a  defendant  cor- 
poration could  not  be  taken  advantage 
of  on  general  demurrer,  where  it  did  not 
appear  affirmatively  that  the  corpora1;ion 
was  still  in  existence.  In  Converse  v. 
Symiis,  10  Massachusetts,  377,  it  is  decid- 
ed that  judgment  will  not  be  arrested 
when  the  non-joinder  is  disclosed  by  plea 
in  bar.  In  Cocks  v.  Brewer,  11  Meeson 
&  VVelsby,  51,  where  it  was  decided  in 
debt  on  judgment,  that  non-joinder  is 
not  a  ground  of  variance,  there  is  a  dic- 
tum  of  Lord  A«inger,  C.  B.  that  the  ob- 
jection could  be  taken  advantage  of  only, 
if  at  all,  by  plea  in  abatement,  but  it  was 
admitted  that  in  scire  facias  on  a  judg- 
ment the  omission  of  a  defendant,  with- 
out the  cause  being  stated,  ai3  that  he  is 
dead  or  the  like,  is  demurable,  because 
the  sci.  fa.  is  a.  quasi  continuation  of 
a  matter  of  record.  In  Morrison  v. 
Trenchard,  4  M.  &  Gr.  709,  there  is  an 
obiter  dictum  ofTindal,  C.  J.,  that  if  the 
promise  appear  in  the  declaration  to  be 
joint,  and  the  suit  be  against  one,  it 
would  be  ground  only  for  plea  in  abate- 
ment, and  not  for  special  demurrer  ;  but 
the  remark  was  extra-judicial,  as  the 
declaration  in  that  case  showed  that  the 
promise  was  joint  and  several.  These 
opinions  are  so  discordant  and  uncertain, 
that  they  cannot  be  considered  as  over- 
throwing a  principle  so  clearly  fomided 
in  reason  asthatwhereajohilliability ap- 
pears on  the  declaration  in  a  suit  against 
one,  the  non-joinder  is  fatal  on  general 
demurrer,  or  in  arrest  of  judgment] 

There  are  some  cases  in  which  the 
nonjoinder  of  a  joint-contractor  cannot  be 
taken  advantage  of  in  any  way  what- 
ever. Thus,  though  it  seems  to  be  as- 
sumed, in  the  principal  case,  that  the 
non-joinder  of  a  secret  partner  might  be 


ground  of  a  plea  in  abatement;  and  was 
indeed,  afterwards  so  decided  in  Dubois 
V,  Ludert,  8  Taunt.  9;  1  x\larsh.  246; 
yet  tliat  case  was  soon  disregarded  in 
practice,  and  at  last  solemnly  overruled, 
Mullet  V.  Hook,  1  AI.  &  Mai.  86;  De 
Mantort  v.  Saunders,  1  B.  &.  Adol.  393  ; 
and,  therefore,  if  issue  be  joined  upon  a 
plea  in  abatement  of  non-joinder,  the 
jury  are  directed  to  consider  with  whom 
had  the  2>laintijf  reason  to  believe  that 
he  contracted.  [vSee  Bonfield  v.  Smith, 
12  M.  &  VV.  405;  Peck  v.  Cowing,  l' 
Denio,  222  ;  and  Alexander  v.  M'Gum, 
3  Watts,  220.]  Statute  9  Geo.  4,  c.  14, 
commonly  called  Lord  Tenterden's  Act, 
and  which  requires  a  writing  signed  to 
take  a  debt  out  of  the  Statute  of  Limi- 
tations, further  enacts  that  the.  written 
acknowledgment  of  one  joint-contractor 
shall  not  charge  another,  and  directs 
that  if  non-joinder  of  a  joint-contractor 
be  pleaded  in  abatement,  and  it  appear 
that  by  reason  of  the  stat.  21  Jac.  1,  cap. 
16,  or  of  that  rtct,  no  action  could  be 
maintained  against  the  person  whose 
non-joinder  is  pleaded,  the  issue  shall 
be  found  against  the  party  pleading  such 
plea.  By  stat.  3  &  4  VV.  4,  c.  42,  s.  9, 
the  bankruptcy  and  certificate,  or  the 
discharge  under  an  insolvent  act  of  a 
co-contractor,  may  be  replied  to  a  plea 
in  abatement  of  his  non-joinder.  And 
that  act  throws  considerable  impediment 
in  the  way  ^f  such  pleas,  by  enacting, 
in  sec.  8,  that  no  such  plea  shall  be 
allowed,  unless  the  co-defendant,  whose 
non-joinder  is  pleaded,  be  therein  stated 
to  be  resident  within  the  jurisdiction  of 
the  court,  and  unless  the  place  of  his 
residence  be  stated  with  convenient  cer- 
tainty in  an  affidavit,  verifying  such 
plea.  The  effect  of  this  will  be  to  put 
an  end  to  a  very  *considera-  r  .i:.-)q.^  -i 
ble  inconvenience;  for  it  was  l  "  •^  J 
held  that  where  tliere  were  two  defend- 
ants in  one  action,  one  of  whom  resided 
out  of  the  jurisdiction  of  the  court,  and 
so  could  not  be  served  with  process,  it 
was  necessary  that  he  should  be  out- 
lawed before  declaring  against  the  other. 
Now",  however,  as  the  non-rejoinder  of 
the  defendant  residing  out  of  the  juris- 
diction cannot  be  pleaded  in  abatement, 
the  plaintiff's  course-  will  be  to  omit 
him  altogether,  and  sue  the  one  residing 
within  the  jurisdiction.  The  same  stat- 
ute further  enacts,  at  sec.  10,  that  when- 
ever such  a  plea  is  pleaded,  and  the 
plaintiff,  without  proceeding  to  trial  on 
an    issue   thereon,   commences  a   new 


486 


SMITHS    LEADING    CASES. 


action,  joining  the  party  named  in  the 
plea  as  a  joint-contractor,  if  it  turn  out 
that  all  the  original  defendants  are  lia- 
Lle,   but  that  some   person   or  persons 
named  in  the  plea  in  abatement  are  not 
liable  as  a  contracting  jiarty  or  parlies, 
the  plaintiff'  is  to  succcetl  against  those 
who  are  liable  ;  and   though  the  party 
who  is  not  liable  is  to   recover  his  costs 
against  the  plaintiff,  the  plaintiff  is  to 
be   allowed  them  as  costs  in  the  cause 
against  the  party  who  pleaded  the  plea 
in  abatement.     13y  1  W.  4,  c.  69,  sec.  5, 
any  one   or  more   of  hnail-contractors, 
stage-coach  proprietors,  or  common  car- 
riers, nuiy  be  sued  in  his,  her,  or  their 
name  or  names  only,  and  no  action  or 
suit  for  daftiages,  for  loss. or  injury  to 
any  parcel,  package,  or   person, -sha^l 
abate  fbrnon-jninder  ofanry  co-contractor 
or  co-proprietor.     [In  actions  ex  delicto 
no  objection  can  be  taken  on   account  of 
non-joinder  of  defendants,  for'  in  torts 
each   is  answerable  for  the  act  of  all. 
Livingston  v.  Bishop,  1  Johnson,  290 ; 
Rose    V.  Oliver,  and  others,   2  id.  305. 
Actions  called  quasi  ex  contractu,  tliat 
is,  where  the  form  of  the  action  is  in  tort, 
but  the  liability  springs  from  a  joint  con- 
.•tract  or  interest,  are  like  actions  ex  con- 
tractu ;  and  non-joinder  of  a  defendant 
is  matter  in  abatement :  Allen  v.  Sewall 
and    others,   2  Wendell,    327;  Low   v. 
Mtrmford  &  Mumforcl,  14  Johnson,  426; 
see  Patton,  Kennedy  &.  Foster  v.   Ma- 
grath  &.  Brooks,  Rice,.  So.   Car.,  1G3 ; ' 
but  this  principle  must  be  considered  as 
■greatly  shaken,  ifnot  w.hol]y  overruled, 
by  the  case  of  Bank  of  Orange  v.  Brown 
and  five  others,  3  Wendell,  153 ;  where, 
in"case  of  common  carriers,  it  is  decided, 
that  either  case  or  assumpsit  lies,  and 
"which  ever  action  is  chosen   must   be 
governed  by  its  own  rule  as  to  joinder  ; 
and  this  appears  to  be  the  soimder  opin- 
ion..    Actjons   quasi  ex   delicto,   when 
.the,  form  of  the  action  is  ii>  contract,  but 
the  ground  of  it  ex  delicto,  as  debt  for  a 
penalty,  are  like  actions  ex  delicto,  and 
non-joinder   of  defendants  is  no  objec- 
tion ;  Boufelle,  q,  t,  &c.,"-v.  Nourse,  4 
■Massachusetts,  43}. ;  Burnham  v.  Web- 
ster, 5  id.  266;  Frost  et  al.  v*  Rovvse  et 
al.  2  Gh-een-leaf,  130.]  _    •    ■,   \, 

The  non-joinder  of  a  perscfn".  Who 
ought"  to  be  co-plaintiff,  is  in  an  action 
e.\  contractu,  generally  speaking,  fatal, 
and  will  be  ground  of  non-suit,  or  if  it 
appears  on  the  record  will  constitute 
error;  1  Wms.  Saund.  291,  f.  g.  Hal- 
sail. v.  -Griffith,  2  C,  &  Mee.  679.  .  [S. 


P.   Wilson   v,    VVallace,   E.xecutrix  of 
Wallace,   8   Sergeant   &    Rawle,    53 ; 
Dob  &  Dob  V.  ilalsey,  16  Johnson,  34: 
because  one  plaintiff  is  not  entitled  to 
the  whole,  aiid  he  k-new  who  his  partner 
was;  Jordan  v.  Wilkins,  3  Washington, 
C,   C.   110.    114:    but  see  Porter   and 
others  v.  Cressdn  and  others,   10  Ser- 
geant &  Rawle,  257,  in  which   it  was 
held  that  in  a  suit  by  C.  W.  &  Co.  on  a 
single  bill  to  C.  W.  &  Co.,  it  could  not 
be  objected  under  the  pleas  of  non  est 
factum  and  payment,  that  the  company 
consisted  of  four,  of  whom  some  were 
not  named,  for  the  court  will  intend  C. 
W.  &  Co.  to  be  the  name  of  the  four.] 
In  actions  ex  delicto  it    is  otiierw^se  ;■ 
Sedgworth  v.   Overend,    7  T.    R.  279* 
Addison  v.   Overend,  6  T.  R.  766 ;  [In 
them  it  is  only  matter  in  abatement  or 
for  apportionment   of  damages   on  the 
trial ;   Wilson  v.  Gamble,  9  New  Hamp- 
shire, 75;  and  see  note  to  Jiill  v.  Gibbs,  . 
.5  Hill,  56.  59 ;]  and  even  in  actions  ex. 
contractu  the  non-joinder  of  a  co-execu-' 
tor  as  plaintiff  is  not  fatal  unless  taken 
advantage  of  by  plea  in  abatement,  1 
Wms.  Saund.  291  g. ;  3  T.  R.  55S ;   1 
Chitty's  Reports,  71.     And-  the  .Cdurts 
have  of  late  hit  upon  a  mode  of  obviating  . 
the  ill  consequences  resulting  from  the  - 
joinder  of  too  few  or  too  many  plaintiffs, 
or  of  too  many  defendants  ;  tor  on  a  pro- 
jrer  case  being   made  out,  tliey  have  al- 
■lovved  the. party  making  the  mistake  to 
amend  by  omitting  or.  inserting  a  name, 
or  names  as  the  case  required.    Bakery.. 
Neave,  3  Tyrwh.  R.  233;  1  Chit.  P.  ed. 
5,p.l4,n.;  Lakinv.  Watson,4  Tyryvh.- 
839.     Btitthe  Court  of  Q,ueen!s  Bench 
has  since  refused  to  act  on  the  authority 
•of  tho.se decisions,  Roberts. v.. Bate,  6  Ad. 
&  Eir.  778.     [An  amendment  adding  a 
new  plaintiff  is  not  allowed,  Wilson  v. 
Wallace,  8  Sergeant  &  Rawle,  53  ;  nor 
changing  the  Christia.n  name  of  a  plain- 
tiff', HorbacJc  v.  Knox,   8  Watts  &.  Ser- 
geant, 30  ;  nor  adding  a  defendant.  Win- 
slow  V.  Merrill  et  al.,  2  Fairfield,  127  ; 
nor  striking  out  a  defendant,  Redington 
V.  Farrar  et  ah,  5  Greenleaf,  379:  but 
an  amendment  striking  out  a    married 
woman   improperly  made  defendant    in 
covenant,  was  allowed  in  Massachusetts; 
Colcord  et  aJ.  v.  Swan  and  ux.,  7  Massa- 
chusetts, 291 ;  Parsons   v.-.  Plaistecl  and 
others,  13  id.  189.     In  New  Hamp-shire, 
by  statute  of  July  4,  1834,  an  amendment 
may.be  made  discharging  one  of  the  de- 
fendants;   Perley   v.    Brown,    12  New 
Hampshire,  494.J 


K  E  E  C  n     V.     H  A  L  L.  487 

As  tlie  whole  of  the  subject  of  non-  ground  of  non-suit,  or  if  it  appear  on  the 

joinder  has  been  ehiborately   discussed  record,  of  error.     Executors  of  Living- 

in  the   notes   to  Cabell  v.   Vaughau,  1  ston  v.  Tremper  and  others,  11  Jolinson, 

Wms.  Saund.  291,  slight  notice  is  here  101  ;  Elmendorph  v.  Tappen  and  others, 

taken  of  any    points  lave  those   which  5  id.   178;    Robertson  v.  Smith,   18  id. 

have  arisen  subsequently  to  tiie  publica-  459;  Savage  &  Bird  v.  Pierpont,   1  id. 

tion  of.lhe  last  edition  of  that  work.  118;  Heron    v.   Hofther   and  others,  3 

[In  actions  ex  contractu,  misjoinder  Rawle,  393.]  [H.  B.  VV.] 

of  either    plaintiffs    or    defendants    is 


*KEECHt?.  HALL.  [^293] 


MICHAELMAS,  19  GEO.  3. 

[reported,  dougl,  21.] 

A  mortgtigee  may  recover  in  ejectment,  without  g'iving  notico  to  quit,  against  a  tenant  who 
claims  under  a  lease  from  the  mortgagor,  granted  alter  the  mortgage  without  the  privity 
of  the  iriortgagee. 

Ejectment  tried  at  Guildhall  before  Buller,  Justice,  and  verdict  for  the 
plaintifT.  After  a  motion  for  a  new  trial  or  leave  to  enter  up  judgment  of 
nonsuit,  and  cause  shown,  the  court  took  time  to  consider  :  and  now  Lord 
Mani^field  stated  the  case,  and  gave  the  opinion  of  the  court  as  follows  : 
.  Lord  Mansfield. — This  is  an  ejectment  brought  for  a  warehouse  in  the 
city,  by  a  mortgagee,  against  a  lessee  under  a  lease  in  writing  for  seven 
years,  made  after  the  date  of  the  mortgage,  by  the  mortgagor,  who  had 
corrtinued  in  possession.  The  lease  was  at  a  rack-rent.  The  mortgagee 
had  no  notice  of  the  lease,  nor  the  lessee  any  notice  of  the  mortgage.  The 
defendant  offered  to  attorn  to  the  mortgagee  before  the  ejectment  was  brought. 
The  plaintiff  is  willing  to  suffer  the  defendant  to  redeem.  There  was  no 
notice  to  quit ;  so  that,  though  the  written  lease  should  be  had,  if  the  lessee 
is  to  be  considered  as  tenant  from  year  to  year,  the  plaintiff  must  fail  in  this 
action.  The  question,  therefore,  for  the  court  to  decide  is,  Avhether  by  the 
agreement  understood  between  mortgagors  and  mortgagees,  which  is  that 
the  latter  shall  receive  interest,  and  the  former  keep  possession,  the  mort- 
gagee has  given  an  implied  authority  to  the  mortgagor  to  let  from  year  to 
year,  at  a  rack-rent ;  or  whether  he  may  not  treat  the  defendant  as  a  tres- 
passer, disseisor,  cind  ^rrong-doer.  No  case  has  been  *cited  where  ^qq^-i 
this  question  has  been  agitated,  much  less  decided.  The  only  case  L  ■  -^ 
at  all  like  the  present,  is  one  that  was  tried  before  me  on  the  home  circuit 
(Belcher  V.  Collins);  but  there  the  mortgagee  ivas  privy  to  the  lease,  and 
afterwards  by  a  knavish  trick  wanted  to  turn  the  tenant  out.  I  do  not 
wonder  that  such  a  case  "has  not  occurred  before.  Where  the  lease  is  not 
a  beneficial  lease,  it  is  for"  the  interest  of  the  mortgagee  to  continue  the 
tenant  :  and  where  it  is,  the  tenant  may  put  himself  in  the  place  of  the 
riiortgagor,  and  either  redeem  himself,  or  get  a  friend  to  do  it.     The  idea 


488  smith's  leading  cases. 

that  the  question  may  be  more  proper  for  a  court  of  equity  goes  upon  a  mis- 
take. It  emphatically  belongs  to  a  court  of  law,  in  opposition  to  a  court  of 
equity  ;  for  a  lessee  at  a  rack-rent  is  a  purchaser  for  a  valuable  considera- 
tion, and  in  every  case  between  purchasers  for  a  valuable  consideration  a 
court  of  equity  must  follow,  not  lead  tlae  law.  On  full  consideration,  we 
are  all  clearly  of  opinion,  that  there  is  no  inference  of  fraud  or  consent 
against  the  mortgagee,  to  prevent  him  from  considering  the  lessee  as.  a 
wrong-doer.  It  is  rightly  admitted  that  if  the  mortgagee  had  encouraged 
the  tgnant  to  lay  out  money,  he  could  not  maintain  this  action  ;(o)  but  here 
the  question  turns  upon  the  agreement  between  the  mortgagor  and  mort- 
gagee :  when  the  mortgagor  is  left  in  possession,  the  true  inference  to  be 
drawn  is  an  agreement  that  he  shall  possess  the  premises  at  ivill  in  the 
strictest  sense,  and  therefore  no  notice  is  ever  given  him  to  quit,  and  he  is 
not  even  entitled  to  reap  the  crop,  as  other  tenants  at  will  are,  because  all  is 
liable  to  the  debt ;  on  payment  of  which  the  mortgagee's  title  ceases.  The 
mortgagor  has  no  power,  express  or  implied,  to  let  leases  not  subject  to 
.every  circumstance  of  the  mortgage.  If,  by  implication,  the  mortgagor 
had  such  a  power,  it  must  go  to  a  great  extent ;  to  leases  where  a  fine  is 
taken  on  a  renewal  for  lives.  The  tenant  stands  exactly  in  the  situation  of 
the  mortgagor.  The  possession  of  the  mortgagor  cannot  be  considered  as 
holdino-  out  a  false  appearance.  It  does  not  induce  a  belief  that  there  is 
no  mortgage  ;  for  it  is  the  nature  of  the  transaction  that  the  mortgagor  shall 
continue  in  possession.  Whoever  wants  to  be  secure,  when  he  takes  a 
-,  lease,  should  inquire  after  and  examine  the  title-deeds.  In  prac- 
L  -J  tice,  *indeed  (especially  in  the  case  of  great  estates,^  that  is  not 
often  done,  because  the  tenant  relies  on  the  honour  of  his  landlord  ;  but, 
whenever  one  of  two  innocent  persons  must  be  a  loser,  the  rule  is,  qui  prior 
est  tempore  potior  est  jure.  If  one  must  suffer,  it  is  he  who  has  not  used 
due  diligence  in  looking  into  the  title.  It  was  said  at  the  bar,  that  if  the 
plaintiff,  in  a  case  like  this,  can  recover,  he  will  also  be  entitled  to  the  mesne 
profits  from  the  tenant,  in  an  action  of  trespass,  which  would  be  a  manifest 
hardship  and  injustice,  as  the  tenant  would  then  pay  the  rent  twice.  I 
give  no  opinion  on  that  point ;  but  there  may  be  a  distinction,  for  the  mort- 
gagor may  be  considered  as  receiving  the  rents  in  order  to  pay  the  interest, 
by  an  implied  authority  from  the  mortgagee,  till  he  determine  his  will.  As 
to  the  lessee's  right  to  reap  the  crop  which  he  may  have  sown  previous  to 
the  determination  of  the  will  of  the  mortgagee,  that  point  does  not  arise  in 
this  case,  the  ejectment  being  for  a  warehouse  ;  but,  however  that  may  be, 
it  could  be  no  bar  to  the  mortgagee's  recovering  in  ejectment.  It  would 
only  give  the  lessee  a  right  of  ingress  and  egress  to  take  the  crop  ;  as  to 
which,  with  regard  to  tenants  at  will,  the  text  of  Littleton  is  clear.  We  are 
all  clearly  of  opinion  that  the  plaintiff  is  entitled  to  judgment. (i) 

(o)  Vide  Cowp.  273. 

{b)  When  the  question  was  argued  at  the  bar,  Lord  Mansfield  said  he  entirely  approved 
of  what  had  been  done  by  Nares,  Justice,  upon  the  Oxford  circuit,  and  afterwards  confirmed 
by  this  court,  in  the  case  of  White  v.  Ilawltins,  viz.,  not  to  suffer  a  lessee  under  a  lease 
vrior  to  tlio  mortgage  to  avail  himself  of  such  lease  on  an  ejectment  by  the  mortgagee,  if 
he  has  had  notice  before  the  action  that  the  mortgagee  did  not  intend  to  turn  him  out  o 
possession.  T/(?s  (hciiine  is,  /imcever,  long  since  overruled.  See  Roe  v.  Reade,  8  T.  R. 
118;  Doe  V.  Staple,  2  T.  R.  684. 


K  E  E  C  H     V.    HALL. 


489 


The  Solicitor-General  for  the  defendant. — Dunning  and  Cowper  for  the 
plaintiff. 

The  rule  discharjied. 


The  point  decided  in  this  case  has 
been  since  frequently  confirmed.  See 
Doe  V.  Giles,  5  Bino-.  421;  Doe  v. 
Maiscjr,  8  R  &  C.  767;  Thunder  v. 
Belcher,  3  East,  449  ;  Smartle  v.  Wil- 
liams, 3  Lev.  387,  1  Salk.  245.  In  Doe 
dem.  Rogers  v.  Cadvvallader,  2  B.  & 
Adol.  473,  the  wife  of  the  lessor  of  the 
plaintiff  had  become  mortgagee  of  the 
premises  in  question  by  a  deed,  dated 
the  7th  of  May,  1828.  Interest  was 
payable  on  the  25th  of  December  every 
year ;  and  had  been  paid  up  to  the  25th 
of  December,  1830;  the  demise  was  on 
the  1st  of  July,  1830,  and  the  defendant, 
who  had  been  let  into  possession  after 
the  mortgage  by  the  mortgagor,  con- 
tended that  the  action  was  not  maintain- 
able, because  it  was  not  competent  to  a 
mortgagee  to  treat  the  mortgagor,  or  his 
tenants,  as  trespassers,  at  any  time  dur- 
ing which  their  lawful  possession  had 
been  recognised  by  him  ;  and  that,  by 
receiving  the  interest  of  the  mortgage- 
money,  on  the  25th  of  December,  1830, 
he  had  acknowledged  that  up  to  that 
time  the  defendant  was  in-lawful  posses- 
sion of  the  premises;  but  the  court  gave 
judgment  for  the  plaintiff,  on  the  ground 
that  the  receipt  of  interest  was  no  recog- 
nition of  the  defendant  as  a  person  in 
lawful  possession  of  the  premises.  How- 
ever, in  Doe  dem.  Whittaker  v.  Hales, 
7  Bing.  322,  Austin,  having  mortgaged 
the  premises  to  the  lessor  of  the  plaintiff, 
let  them  to  the  defendant.  The  mort- 
gagee directed  his  attorney  to  apply  to 
Austin  for  the  interest;  and  the  attor- 
ney, in  April,  1830,  applied  to  the  defen- 
dant for  rent  to  pay  the  interest,  threat- 
r  *2Qr  1  ^'^'^^  ^o  ^distrain  if  it  were 
'■  -■    not  paid,  and  received  it  three 

or  four  times.  The  learned  judge  at 
the  trial,  and  the  court  in  Banco  after- 
wards, held  that  these  facts  amounted  to 
a  recognition  that  the  defendant  was 
lawfully  .in  possession  in  April,  1830, 
and  consequently  that  he  could  not  be 
treated  as  having  been  a  trespasser  on 
December  25,  182-5,  the  day  on  which 
the  demise  was  laid.  Lord  Tenterden 
delivering  judgment  in  Doe  v.  Cadwal- 


lader,  took  some  pains  to  distinguish  that 
case  from  Doe  dem.  Whittaker  v.  Hales :  ■ 
"there,"  says  his  lordship,  "the  defen- 
dant, in  order  to  show  that  he  was  not  a 
trespasser,  on    the  25th   of  December, 

1829,  proved  that  in  A])ril,  1830,  he  was 
in  possession  of  the  premises;  and  that 
an  agent  of  the  lessor  of  the  plaintiff 
called  on  him,  demanded  payment  of 
interest  on  a  mortgage  to  the  lessor  of 
the  plaintiff,  and  received  money  eq 
nomine,  as  interest,  the  defendant  being 
required  to  pay  it  instead  of  rent  ta  the 
mortgagor.  Lord  Chief  Justice  Tindal, 
after  stating  these  facts  observes,  "  This, 
therefore,  was  a  demand  made  by  the 
agent  of  the  mortgagee,  and  with  full 
knowledge  of  all  the  circumstances  of 
the  parties,  namely  that  the  defendant 
was  tenant  to  the  mortgagor,  and  not  to 
the  lessor  of  the  plaintiff,  and  if  a  party 
employs  an  agent  who  has  full  knowledge 
of  the  circumstances,  it  must  be  pre- 
sumed that  the  principal  has  the  same 
knowledge,  so  that  the  lessor  of  the 
plaintiff,  having  recognised  and  availed 
himself  of  the  possession  of  the  defen- 
dant, so  late  as  April,  1830,  cannot  treat 
him  as  trespasser  in  1829.  That  case 
is  very  distinguishable  from  the  pre- 
sent: the  evidence  in  this  case  was 
•only,  that  the  mortgagee  had  received 
interest  on  the  money  advanced  by  him 
for   a  period  covering  the    1st  of  July, 

1830,  the  day  of  the  demise  mentioned 
in  the  declaration.  By  so  receiving  the 
interest  he  did  not  recognise  the  defen- 
dant as  a  person  in  lawful  possession  of 
the  premises,  nor  did  he  avail  himself  of 
that  possession  to  obtain  payment  of  the 
interest." 

Upon  the  vvhole,  the  question  whether 
the  mortgagee  have  recognised  the 
tenant  of  the  mortgagor  as  his  tenant 
appears  to  be  a  question  more  of  fact 
than  of  law,  and  probably  would  be  left 
to  the  consideration  of  the  jury,  provided 
there  were  any  evidence  fit  to  be  sub- 
mitted to  them.  And  the  decision  in 
Doe  V.  Cadwallader  seems  to  establish 
that  mere  receipt  of  interest  by  the 
mortgagee,  coupled  with  no  other    fact 


490 


SMITHS    LEADING    CASES. 


whatever,  would  not  be  evidence  fit  to 
be  left  to  the  jury,  on  the  question  of 
recognition.  The  ruling  in  Doe  v. 
Cadvvallader,  it  must  however,  be  ob- 
served, seems  to  have  been  thoujjlit  too 
severe  by  Lord  Dennian,  in  Evans  v. 
Elliott,  9  A.  &  E.  342,  where  his  lord- 
ship remarked  that  he  was  by  no  means 
prepared  to  admit  that  a  jury  would  not 
be  warranted  in  inferring  a  recognition 
of  the  tenant's  right  to  liold  from  the 
mere  circumstance  of  the  mortgagee's 
knowingly  permitting  the  mortgagor  to 
continue  tlie  apparent  owner  of  the  pre- 
mises as  before  the  mortgage,  and  to 
lease  them  out  exactly  as  if  his  property 
in  them  continued.  It  seeins,  however, 
from  a  prior  part  of  his  lordship's  judg- 
ment, that  the  three  other  judges  were 
disposed  to  adii-ere  to  the  opinion  ex- 
pressed in  Doe  v.  Cadwalladcr.  When 
once  it  has  been  proved  that  the  mort- 
gagee has  recognised  the  tenant  of  the 
mortgagor  as  his  tenant,  he  cannot  treat 
him  as  a  tort  feasor,  nor,  if  he  elect  to 
treat  him  as  a  tort  feasor,  can  he  main- 
tain any  demand  against  him  in  which 
he  is  charged  as  a  tenant,  for  Birch  v. 
Wright,  1  T.  R.  378,  clearly  establishes 
that  a  man  cannot  be  treated  at  once 
both  as  a  tenant  and  a  trespasser. 

It  often  happens  that  there  is  an  ex- 
press covenant  in  a  mortgage  deed,  that 
the  mortgagor  shall  remain  in  possession 
of  the  premises  until  default  in  payment 
of  the  mortgage-money  at  a  certain 
period.  Up  to  that  period  he. seems  to 
hold  an  interest  in  the  nature  of  a  term 
of  years ;  and,  of  course,  during  that 
period  he.  has  a  right  to  the  possession, 
and  could  not  be  legally  ejected.  Wil- 
kinson v.  Hall,  3  Blng.  N.  C.  533,  the 
stipulation  that  he  shall  remain  in  pos- 
session operating  as  a  redemise.  When 
that  fixed  period  has  expired,  he  be- 
comes, if  the  money  have  not  been  paid, 
tenant  at  snfl'erence  to  the  mortgagee. 
"  We  must  look,"  said  Best,  C.  J.,  deli- 
vering' judgment  in  sach  a  case,  "  at  the 
covenant  he  lias  made  with  the  mort- 
gagee, to  ascertain  what  his  real  situa- 
tion is.  W'e  find,  from  the  deed  between 
the  parties,  that  possession  of  his  estate 
is  secured  to  hith  mitil  a  certain  day 
and  that,  if  he  does  not  redeem  his 
pledge  by  that  day,  the  mortgagee  has 
a  right  to  enter  and  take  possession. 
From  that  day  the  possession  belongs  to 
the  mortgagee ;  and  there  is  no  more 
occasion  for  his  requiring  that  the  estate 


should  be  delivered  up  to  him  before  he 
brings  an  ejectment,  than  for  a  los^sor  to 
demand  possession  on  the  determination 
of  a  term.  Tlie  situation  of  a  lessee  on 
the  expiration  of  a  term,  and  a  mortgagor 
who  has  covenanted  that  the  mortgagee 
may  enter  on  a  certain  day,  is  precisely 
the  same."     5  Bingh.  427. 

With  respect  to  the  nature  of  the 
mortgagor's  possession  after  the  mort- 
gage, where  there  is  no  stipulation  that 
he  should  be  allowed  to  remain  in  pos- 
session *for  any  certain  time,  r  *2<)7  T 
there  seems  to  be  more  diffi-   ■-  -' 

culty.  Messrs.  Coote  and  Morley,  in 
an  elaborate  note  to  Watkins  on  Con- 
veyancing, deliver  if  as  their  opinion, 
that  "  if  there  be  no  express  agreement- 
originally  as  to  the  period  of  possession, 
ant?  the  mortgagor,  being  the  occupant, 
remain  in  possession  tvitli  the  consent  of 
the  mortgagee,  it  seems  that,  in  such  a 
case,  he  ought  to  be  considered  strictly 
as  tenant  at  will."  This  is  true,  if  it  be  . 
admitted  that  he  has  remained  in  pos- ■ 
session  with  the  consent  of  the  rnmtf  ■ 
gagee.  But  the  more  difficult  question 
seems  to  be?,  under  what  circumstanceg 
shall  the  mortgagee's  cojisent  be  takea 
to  exist,' and  shall  it  be  inrplied  merely 
from  tlie  fact  of  his  abstaining^  from  oust- 
ing the  mortgagor  immediately  after  the 
execution  of  the  mortgage  ]  Certainly 
neither  the  case  of  Thunder,  dem. 
Weaver  v.  Belcher,  3  East,  450;^  nor 
that  of,  Smartle  v.  Williams,  1  Salk. 
246;  3  Lev.  387,  which  are  cited  by 
Messrs.  Coote  and  Morley,  have  any 
tendency  in  favour  of  such,  an  implica- 
tion ;  for,  in  the  former,  ejectment  was 
brought  against  a  tenant  let  into  posses- 
sion by  the  mortgagor  after  the  mort- 
gage; and,  as  there  had  been  no  recog- 
nition of  him  by  the  mortgagee,  there 
was  judgment  against  him ;  and  so  far 
was  the  court  from  considering  that  the  . 
mortgagor  would,  under  the  circum- 
stances above  supposed,  have  been  tenant 
at  will,  had  he  remained  himself  in  pos- 
session instead  of  letting,  that  Lord 
EUenborough  says,  "  A  mortgagor  is  no 
more  than  a  tcruint  at  sufferance,  not 
entitled  to  any  notice  to  quit;  and. one 
tenant  at  sufferance  cannot  make  ano- 
ther." In  Smartle  v.  Williams  the 
mortgagor  certainly  remained  in  posses- 
sion, and  that  with  the  express  consent 
of  the  mortgagee,  for  Holt,  C.  J.,  says: 
"  Upon  executing  the  deed  of  mortgage, 
the  mortgagor,  by  the  covenant  to  enjoy 


KEECII     V.     HALL. 


491 


till  default  of  payment,  is  tenant  at 
will."  But,  in  that  case,  tlie  mortgagee 
had  assigned  the  mortgage ;  and  the 
question  was,  whetlier,  by  doing  so,  he 
had  determined  his  will,  arid  vvhetiier 
the  mortgagor's  subsequent  continuance 
in  possession  divested  the  estate  of  the 
assignee,  and  turned  it.  to  a  right,  so  as 
.to  prevent  a  person  to  whom  the  assignee 
afterwards  assigned,  and  wJio  brought 
the  ejectment,  from  taking  any  legal 
interest;  upon  which  point  the  court 
held  tiiat  it  had  no  such  efl'ect,  since  the. 
mortgagor  was,  at  all  events,  tenant  at 
sufferance  after  the  assignment.  And 
it  is  not  'believed  that  tliere  exists  any 
decision  in  which  a  nfortgagor  remain- 
ed in  possession,  after  an  Tabsolute  con- 
veyance away  of  his  estate,  by  way  of 
mortgage,  without  any  consent  on  the 
part  of  the  mortgagee,  express  or  to  be 
implied  otherwise  than  from  his  silence, 
has  been  considered  in  any  otiier  light 
tha^n  as  tenant  at  suffei'unce,  to  the  de- 
finition of  whom  he  seems  strictly  to 
answer,  being  a  person  who  comes  in  hy 
right,  and  holds  over  without  right : 
see  Co.  Litt.  57,  and  Lord  Hale's  MtjS., 
note  5,  where  the  following  case  is  put, 
which  seems  analogous  :— ^"  If  tenant  for 
years  surrenders,  and  still  continues  pos- 
session, he  is  tenant  at  sufferance  or 
disseisor  at  election." 

This  subject  lias  been  treated  at  some 
length,  because  the  reader  will  find  jf 
.often  said  that  a  mortgagor  in  posses- 
sion is  tenant  at  mil  quodammodo  ;  an 
idea  whicli  Lord  JMansfield  especially 
seems»to  have  countenanced,  for  in  the 
principal  case  he  says,  "  when  the  mort- 
.gagoi  is  left  in  possession,  the  true  i.n- 
fcrence  to  be  drawn  is  an  agreement 
thart  lie  shall  possess  the  premises  nt  will,. 
in  the-  strictest  sense :  and  thereft)re  no 


notice  is  ever  given  him  to  quit,  and  he  is 
not  even  entitled  to  reap  tlie  crop,  as  other 
tenants  at  will  are,  because  all  is  liable 
to  the  debt:"  and  in  Moss  v.  Gallimore, 
which  will  be  printed  in  this  collection, 
he  calls  the  mortgagor  "  tenant  at  will 
quodammodo."  Whereas  Lord  Ellen- 
borough  in  Thunder  v.  Belcher,  deno- 
minated him  "tenant  at  sufferance;" 
find  it  is  submitted  that  it  would  be  more 
convenient  to  range  his  possession  under 
some  of  the  ancient  and  well-known 
desciptions  of  tenancy  than  to  invent 
the  new  and  anomalous  class  of  tenants 
at  uijll  quodammodo,  for  the  only  pur- 
pose of  including  it.  See  Litt.  sec. 
•681. 

Upon  the  whole  it  is  concluded,  1st. 
That,  if  there  be  in  the  mortgage-deed 
an  agreement  that  the  mortgagor  shall 
continue  in  possession  till  delimit  of  pay- 
ment on  a  certain  day,  he  is  in  the 
mean  while  termor  of  the  intervening 
term.  Sndly.  That,  if  default  r  ^t^cynj^  -i 
be  *madeon  thy  t  day,  he  be-  '■  "  •' 
comes  tenant  at  suftcranec.  3rdly.  That 
when  there  is  no  such  agreement,  he  ia 
tenant  at  sufferance  inmiediatery  upon 
the  execution  of  the  mortgage,  unless 
the  mortgagee  expressly  or  impliedly 
consented  to  his  remaining  in  possession. 
4thly.  That  such  consent  renders  him 
tenant  at  will,  5thly.  That  if  in  any  of 
the  last  three  cases  he  let  in  tenants, 
they  may  be  treated  by  the  rnoutgagee, 
if  he  think  proper,  as  tortfeasors.  6thly. 
That,  if  the  mortgagee  recognise  their 
possession,  they  become  his  tenants. 
Lastly,  that  the  mere  receipt  of  interest, 
from  the  mortgagor  does  not  amount  to 
such  a  recognition.  These  two  last  pro- 
positions muiit,  however,  now  be  taken 
subject  to  the  doubts  e.xpressed  in  Evans 
V.  iQllioe     . 


■  Ii\  England,  at  the  present  day,  th6m.drtgagee  is,. by.the  common  law  courts 
as  much  considered  the  absolute  owner  Of  the  estate,  as  he  has  been  at  any 
past  time.  On  the  other  hand,  in  the  courts' of  equity,  the  mortgagor  is 
equally  esteemed  as  entitled  to  theestate,vvhile  the  mortgagee  is  treated  as 
having. a  mere  chose  in  action,  mth.  a  .lien  on„the  land  for  security.  '  It 
would  perhaps  have  been  better,  to  have  retained' in  the  United  States 
this  strictness  of  doctrine,  under  which  the  only  dispute  could  be  as  to  the 
actual  rights   of  the  parties,  and  not.  as   to  the  form  x)f  their  remedies. 


492  smith's   leading   cases. 

Even  in  those  states  where  the  courts  of  law  exercise  a  mixed  jurisdiction, 
there  could  have  been  no  difficulty  of  pursuing  the  double  inquiry,  to  what 
the  mortgagee  was  entitled  at  law,  and  from  what  he  would  be  restrained 
in  equity,  and  in  yielding  him  all  the  rights  given  by  one  system, 
and  not  taken  away  by  the  other.  In  practice,  however,  this  has  not 
been  done.  In  the  courts  of  common  law,  the  mortgagee  has  been 
generally  treated,  as  having  a  hybrid  estate,  even  when  resorting  to 
common  law  remedies  to  obtain  undoubted  common  law  rights,  and  for  pur- 
poses sanctioned  by  the  English  courts  of  equity.  The  result  of  tliis  has 
been  to  introduce  great  confusion  and  uncertainty,  in  all  cases  where  the 
proceedings  are  not  by  bill  in  equity,  or  under  the  provisions  of  some  local 
statute. 

In  the  eastern  states  of  this  cdftntry,  the  common  law  rights  and  remedies 
of  the  mortgagee  have,  as  between  him  and  the  mortgagor,  been  better  pre- 
served than  in  most  other  parts  of  the  country.  Thus  it  has  been  held,  that 
the  mortgagee  may  enter,  or  bring  an  action  to  recover  possession  of  the 
premises,  immediately  upon  the  execution  of  the  mortgage,  and  before  for- 
feiture by  the  mortgagor,  of  his  title  to  take,  advantage  of  the  condition ; 
Blair  v.  Bearce,  2  Greenleaf,  132  ;  Brown  v.  Crane,  1  New  Hampshire, 
169.  Reed  v.  Davis,  4  Pick.  216;  iVIayo  v.  Fletcher,  14  Pick.  525,  530. 
Erskine  v.  Townscnd,  2  Massachusetts,  495  ;  3  Massachusetts,  132  ;  5 
Massachusetts,  121.  This  common  law  right  of  the  mortgagee  to  enter  before 
forfeiture  of  the  condition,  has  been  enforced  in  Massachusetts-notwithstanding 
a  parol  agreemtsnt  that  the  mortgagor  should  remain  in  possession  until  for- 
feiture, on  the  ground  that  such  agreement  as  tending  to  create  an  estate  in 
land,  must  be  in  writing,  in  order  to  satisfy  the  provision  of  the  statute  of 
frauds.  Cohnan  v.  Packard,  16  Massachusetts,  39.  Nor  need  the  mort- 
gagee in  that  section  of  the  country,  give  notice  in  order  to  support  an 
action-,  for  the  recovery  of  possession,  14  Pick.  530.  Even  were  the  mort- 
gagor tenant  at  will,  it  has  been  held  that  the  mere  bringing  the  action 
would  be  sufficient  to  determine  his  tenancy,  Rockwell  v.  Bradley,  2  Con- 
necticut, 5.  Nor  will  this  right  to  recover  possession,  be  defeated  by  a 
refusal  to  accept  the  mortgage  money  on  a  tender  made  after  the  day.  The 
condition  not  having  been  taken  advantage  of  in  time,  is  gone  at  law,  and 
the  mortgagor  is  left  to  his  equitable  rights,  Maynard  v.  Hunt,  5  Pick.  243. 
Even  ih  those  states,  however,  as  it  regards  third  persons,  from  tht3  absence 
of  courts  of  equity,  the  principles  of  chancery  have  been  adopted  into  the 
common  law.  Thus  the  defendant  in  a  possessory  action,  cannot  set  up  the 
naked  outstanding  legal  title  of  the  mortgagee,  for  the  purpose  of  defeating  the 
morto-ao-or  or  his  assiirnee,  Wellington  v.  Gale,  7  Pick,  159.  In  like  man- 
ner,  the  mortgagor  is  treated  as  having  the  freehold  for  the  purpose  of 
gaining  a  settlement  in  a  township,  or  investing  his  wife  with  a  right  to 
dower,  Groton  v.  Roxborough,  6  Massachusetts,  53  ;  Snow  v.  Stevens,  15 
Massachusetts,  279. 

It  may  be  observed  however,  that  by  statute  in  Massachusetts,  the  plain- 
tiff who  brings  a  writ  of  entry  on  a  mortgage  after  forfeiture  by  the  mort- 
gagor, obtains  only  a  conditional  verdict,  which  is  avoided  on  payment  of  the 
debt  before  possession  given.  Taylor  v.  Porter,  7  Massachusetts,  357 ; 
Erskine  v.  Townsend,  2  Massachusetts,  196. 


KEEC  H    v.     H  ALL.  49.3 

As  it  regards  third  persons,  the  mortgagor  has  always  been  treated  by  the 
courts  of  New  York,  as   having  the  freehold.     Thus  his  wife  was  entitled 
to  dower ;  Hitchcock  v.  Harrington,  6  Johnson,  295  ;  and  as  we  have  seen, 
they  have  not  in  this  respecudifliired  from  those  of  Massachusetts.     They 
would  appear,  however,  to  have  carried  this  equitable  doctrine  to  the  extent 
of  holding,  that  even  as  between   mortgagor  and   mortgagee,  the   freehold 
was  in  the  former,  although   they  admitted  that   the  latter    had  the  right  to 
possession.     Thus  in  the  case  of  Runyan  v.  Mcrsereau,  11   Johnson,  534, 
the  defendant  in  action  of  trespass  for  cutting  wood,  brought  by  the  mort- 
gor,  pleaded  liberum  tenementum  in  the  mortgagee  and  a  license  from  him. 
The  plaintiff;  instead  of  replying  specially  the  peculiar  character  of  his 
estate,  which  in  New  York,  would  have  enabled  him,  as  tenant  at  will, 
(Dickinson  v.  Jackson,  6  Cowen,  149,)  to  maintain   his  action  even  against 
the  tenant  of  the  freehold,  traversed  the  plea,  and  the  court  held  on  a  case 
stated,  that  the  freehold  was  in  him  and  not  in  the  mortgagee.     On  this 
principle  that  the  freehold  is  in  the  mortgagor,  it  was  in  another  case  deci- 
ded, that  where  a  mortgagee  in  possession  made  an  absolute  conveyance  of 
the  estate  in  fee,  unaccompanied  by  an  assignment  of  the  debt,  the  vendee 
could  not  defend  his  possession  against  an  ejectment  brought  by  the  mortga- 
gor.    Jackson  v.  Bronson,  19  Johnson,  325.     The  ground  of  the  decision 
appears  to  have  been,  that  the  vendee  vested  his  defence  on  a  right  to  an 
absolute  estate  of  freehold   and  not  to  a  mere   possession,  and  moreover, 
that  the  conveyance  to  him  had  not  passed  the  debt  for  which  the  mortgage 
was,  in  equity,  merely  a  security.     In  Wilson  v.  Troup,  2  Cowen,   195, 
such  a  conveyance,  unaccompanied  by  an  assignment  of  the  debt,  was  said 
to  pass  no  title.     But  although  denying  that  the  mortgagee  had  a  freehold, 
the  courts  appear  to  have  fully  admitted  that  he  had  an  interest  in  the  land, 
\yhich  gave  him  a  right  to  possession  determinable  on  payment  of  the  debt. 
Thus  in  Jackson  v.  Minkler,  10  Johnson,  480,  and  in  Jackson  v.  Bo  wen,  7 
Cowen,  21,   the   assignee  of  the    mortgagee,  was    allowed   to    protect  his 
possession  by  the  assignment,  against  an  ejectment  brought  by  the  mort- 
gagor, and  the  right  of  the  mortgagee  himself  to  recover  an  ejectment,  has 
been  always  admitted.     As  early  however,  as  the  case  of  Jackson  v.  Lang- 
head,  2  Johnson,  75,  it  was  decided  that  when  the  mortgagor  is  left  in  pos- 
session, he  is  entitled  to  notice  to  quit  before  he  can  be  ejected  by  the  mort- 


iffee. 


la  the  subsequent  case  of  Dickinson  v.  Jackson,  6  Cowen,  149,  the  same 
point  was  again  decided,  on  the  ground  that  the  possession  of  the  mortga- 
gor, being  unquestionably  lawful,  he  came  within  the  reason  of  the  protection 
which  the  law  has  extended  to  tenants,  whose  estates  would  formerly  have 
been  at.  will,  and  capable  of  being  avoided  without  notice.  This  rule,  with 
regard  to  the  estate  of  the  mortgagor,  had  however  annexed  to  it  the  impor- 
tant qualification,  probably  drawn  by  analogy,  from  the  law  of  tenancy  at 
will,  (Coke  Litt.  57,  a,)  that  if  the  mortgagor  granted  his  estate  to  a  third 
party,  the  mortgagee  might  maintain  an  ejectment  without  giving  notice  to 
quit.  Jackson  v.  Fuller,  4  Johns.  215  ;  Jackson  v.  Slackhouse,  1  Cowen, 
126  ;  Jackson  v.  Hopkins,  18  Johns.  188,  Moreover,  though  the  mortga. 
gor  himself,  was  thus  entitled  to  the  six  months'  notice  of  a  tenant  from 
year  to  year,  yet  it  was  not  held  requisite  that  this  notice  should  begin  or 


494  smith's   leading  cases. 

terminate  at  the  end  of  that  current  year,  or  indeed,  at  any  particular  time. 
Jackson  v.  Stafford,  2  Cowcn,  547.. 

In  opposition  to  the  decision  in  Massachusetts,  as  given  in  the  case  of 
Maynard  v.  Hunt,  that  tender  afier  the  day,  would  not  be  a  good  per- 
formance of  the  condition  :  evidence  of  the  refusal  of  a  tender  made  by 
the  mortgagor,  after  the  period  fixed  for  performance  of  the  condition, 
has  been  determined  in  New  York,  to  be  a  good  defenfce  to  an  eject- 
ment brought  by  the  mortgagee.  Jackson  v.  Craft,  18  Jolmson,  110; 
Edwards  v.  Farmers  Fire  Ins.  Co.,  21  Wendell, -488.  This,  of  course,  could 
only  be  on  the  ground  that  the  mortgagee  had  no  estate  in  the  1-and,  save  a 
mere  right  to  the  possession  as  security,  since  if  the  freehold  had  vested  in 
him  by  the  conveyance,  it  could  not  be  defeated,  saveby  a  pursuance  of 
the  exact  terms  of  the  condition,  unless  indeed,  there  had  been  a  waiver  on 
his  part,  by  a  consent  to  accept  something  else  instead.  Even  then,  it  may 
be  doubted,  whether  a  condition  in  defeasance  of  an  estate,  can  be  altered 
by  any  subsequent  act  between  the  parties,  and  j'et  retain  its  efTect  as  a 
defeasance.  It  would  seem,  that  its  power  is  derived  wholly  from  the 
original  reservation,  and  hence,  that  it  cannot  afterwards  bo  changed  by 
matter,  either  in  deed  or  in  pais.  Thus  it  was  held  in  Faulkiner's  Admin- 
istratrix V.  Brockenborough,  4  Randolph,  245,  that  even  where  a  tenJer 
made  after  the  day  was  accepted  by  the  mortgagee,  his  right  to  recover  at 
law  was  not' thereby  affected.  -Although  the  mortgage  in  tliis  case  was  of  a 
ciiattel,  the  decision  was  rested  on  principles  equally  applicable  to  real 
estate. 

The  law  in  New  York,  has  however,  been  changed  by  the  revised 
statutes,  and  ejectment  cannot  now  be  maintained,  on  any  species  of  mort- 
gage. Steward  v.  Hutchins,  13  Wendell,  495;  Jackson  v.  Meyers,  11 
Wendell, ^537.  The  right  of  actual  entry,  having  been  also  taken  away  at 
the  same  time,  it  would  seem  that  the  mortgagee  is  no  longer  entitled  to  the 
possession  of  the  land,  on  any  terms,  so  that  the  declaration  of  the  court,  in 
Evertson  v.  Sutton,  5  Wendell,  295,  that  even  as  between  mortgagor  and 
mortgagee,  the  former  was  to  be  deemed  the  true  owner,  would  seem  to  be 
fully  justified  bj^  the  preseiU  state  of  the  law  of  mortgage  in  New  York. 

The  cases  of  Simpson  v.  Amnions,  1  Binney,  177  ;  Smith  v.  Shuler,  12 
Sergeant  &  Rawle,  243,  and  Knaub  v.  Esseck,  2  Watts,  282,  would  seem 
fully  to  have  established,  that  in  Pennsylvania,  the  mortgagee  is  entitled  to 
recover  possession  of  the  land  by  ejectment.  As  notice  was  not  given  or 
required,  in  any  of  these  cases,  it  may  be  presumed  that  the  law  of  that 
state,-"  coincides  in  this  respect,  with  that  of  Massachusetts.  It  may  be 
observed,  that  in  Simpson  v.  Ammons,  and  in  Smith  v.  Shuber,  the  action 
was  brought  by  the  personal  representative,  of  the  deceased  mortgagee,  and 
not  by.the  heir.  This  was  in  consequence  of  the  peculiar  jurisprudence 
of  Pennsylvania,  under  which  an  ejectment  may  maintained,  on  an  equi- 
table title.  Of  course  however,  the  recovery  of  the  plaintiffs  in  these 
actions,  proceeded  on  the  ground,  that  the  legal  title  was  held  by  the  heirs 
of  the  mortgagee,  for  their  benefit,  on  the  familiar  principle  of  Chancery, 
that  the  land  descends  .to  the  heir,  in  trust  for  the  security  of  the  debt.  As 
the  rights. of  the  trustee  and  cestui  que  trust,  to  bring  ejectment,- where  the 
trust  is  not  executory,  are  co-extensive  in  Pennsylvania,  it  follows,  that  the 
action  might  have  been  sustained  by  the  heir,  who  would  then  have  recov- 


KEECH    V.     HALL*  495 

ered,  and  held  the  legal  estate  ia  trust  for  the  executor,  until  payment  of 
the  debt,  and  afterwards,  in  trust  for  the  inortgagor. 

It  appears  therefore,  that  in  Pennsylvania,  and  generally  in  New  Eng- 
la^id,  tlie  law,  with  regard  to  ejectments  brought' by  the  mortgagee  to 
obtain  possession  of  the  premises  mortgaged,  stands  upon  the  fooling  on 
which  it  was  placed  in  England,  by  the  decision  in  Keech  v.  Hall.  It  does 
not  appear  that  the  question  of  the  mortgagee's,  right  to  sustain  a  common 
law  action  to  recover  the  land,  has  .ever  been  brought  before  the  Supreme 
Court  of  the  United  States,  but  it  would  seem  to  be  fully  recognised  there, 
from  the  language  held  by  that  tribunal,  in  Hughes  v.  Edwards^  9  Whea- 
ton,  495,  and  by  the  Circuit  Courts  of  Rhode  Island,  and  Massachusetts,  in 
Randall  v.  Phillips,  3  Mason,  386,  and  in  Dexter  v.  Phillips,  1  Sumner, 
116. 

In  New  York,  on  the  contrary,  while  ejectment  was  still  allowed  to  be 
brought' bj?-  the  mortgagee,  six  months'  notice  was  required- to  be  previously 
given-to  the  mortgagor,  and  we  have  seen,  that  this  action  has  been  alto- 
gether taken  away  in  that  state  by  statute. 

In  the  case  of  Keech  v.  Hall,'  the  ejectment,  was  brought  against  a  lessor, 
holding  under  a  lease  made  subsequent  to  the  mortgage.  It  is  hardly  neces- 
sary to  sa)'-,  that  tlie  rights  of  a  tenant,  under  such  circumstances,  can  never 
be  greater  tlian  those  of  the  mortgagor  himself,  and  may,  in  some  cases,  be 
less,  since  it  would  seem,  both  from  principle  and  from  the  decision  in  Jones 
V.  Clark,  20  Johns.  121,  that  he  came  within  the  reason  of  the  doctrine, 
that  notice  was  not  necessary,  where  the  ejectment  was  brought  against  a 
party  claiming  by  subsequent  grant  from  the  mortgagor.  Of  course  how- 
ever, if  the  mortgagee  receive  rent,  as  such,  from  the  tenant,  it  will  amount 
to  a  recognition  of  the  tenancy. 

It  has  been  seen  from  the  note  of  the  English  editor,  that  much  doubt 
exists  as  to  the  exact  nature  of  the  mortgagor's  estate,  when  left  in  posses- 
sion by  the  mortgagee,  put  without  any  definite  contract  or  consent.  The 
right  of  the  mortgagee  to  eject  him,  without  notice,  is  not  inconsistent  with 
the  idea,  that  he  is  a  tenant  at  will,  in  the  strictest  sense  of  the  word,  since 
the  liability  to  such  a  determination  of  the  tenure,  is  one  of  the  character- 
istics of  an  estate  at  will,  in  the  common  law  sense  of  the  term.  Lit.  sect. 
58.  Althougli  the  courts  at  the  present  day,  in  pursuance  of  the  policy  of  • 
the  law  and  the  presumed  intent  of  the  parties,  construe  what  might  have 
been  of  old,  a  mere  tenancy  at  will,  into  a  holding  from  year  to  year  ;  there 
would  yet  seem  to  be  no  reason  why  a  strict  tenure  at  will  should  not  be 
created,  when  such  is  the  menning  of  the  parties,  and  when  the  reasons 
against  it,  growing  out  of  the  ordinary  relations  of  landlord  and  tenant,  are, 
as  in  the  case  of  mortgagor  and  mortgagee,  inapplicable.  Hargrave's  Coke 
Lit.  65,  a,  note  3.  As  aa'iirht  to  the  emblements  was  one  of  the  best  defined 
incidents  to  an  estate  at  will,»it  would  se6m,  that  if  the  mortgagor  has  it  not, 
such. cannot,  be  the  nature  of  his  tenure.  .But  there  does  not  appear  to 
have  been  any  express  decision  denying  him  this  right,  although  there  may 
be  found  many  dicta,  asserting  that  he  docs  not  possess  it.  Mayo  v. 
Fletcher,  14  Pick.  530.  Lord  Mansfield  seemed,  in  Keech  v.  Hall,  to 
incline  to  the  idea,  that  a  right  to  the  emblements,  might  have  existed  in 
the  defendant,  had  the  exercise  of  such  a  right  been  possible,  Avith  refetence 
to  the  property  for  which  the  ejectment  was  brought. 


49^6  smith's  leading   cases. 

In  the   case  of  Mayo  v.  Fletcher,  14  Pick.  525,  it  was   decided  by  the 
Supreme  Court  of  Massachusetts,  that  the  mortgagor,  when  holding  without 
any  express  consent  on  the  part  of  the  mortgagee,  or  after  the  expiration  of 
such  consent,  was,  strictly  speaking,  a  tenant  at  sufferance,  and  as  such,  might 
without  notice,  be  ejected  by  action,  or  by  an  entry  made  at  the  pleasure  of 
the  party  entitled  to  the  freeheld  ;  although,' like  other  parties  holding  over 
by  wrong,  after  the  expiration  of  a  right  of  possession,  of  lawful  origin,  not 
liable  to  be  treated  before  such  entry,  as  a  trespasser,  nor  made  answerable 
in  an  action  of  trespass.     The  court  at  the  same  time^  held  as  undoubted 
law,  the  doctrine,  that  where  there  is  an  agreement  in  writing,  that  the 
mortgagor  shall  remain  in  possession,  until  failure  on  his  part  to  take  advan- 
tage of  the  condition,  he  will  be  held  tenant  for  years,  of  a  term  co-extensive 
with  the  period  between  the  date  of  the  agreement,  and  the  time  fixed  for  the 
performance  of  the  condition.   On  the  expiration  of  the  term  thus  created  by 
the  contract  of  the  mortgagee,  it  was  farther  held,  that  he  became  what  with- 
out such  consent,  he  would  have  been  in  the  first  instance,  a  mere  tenant 
at  suflTerance,  and  as  such,  liable  in  his  own  person,  or  in  that  of  the  tenants 
holding  under  him,  by  leases  subsequent  to  the  mortgage,  to  be  dispossesed, 
without  notice,  at  the  pleasure  of  the  mortgagor,  either  by  entry  or  action. 
But  even  where  the  mortgage  itself  contains  a  clause  authorizing  the  mort- 
gagor to  remain  in  possession,  it  cannot  enure  as  a  lease  at  common  law, 
unless  the  instrument  be  executed  by  the  mortgagee  ;  Doe  v.  Roylance,  8 
M.  &  W.  533.   .Moreover,  although  the  doctrine  of  Mayo  v.  Fletcher,  and 
Wilkinson  v.  Hall,  that  a  stipulation   for  the  continued  possession  of  the 
mortgagor  may  be  construed  as  a  good  lease  for  years  to  him,  and  not  as  a 
mere  covenant,  was  sanctioned  by  the  recent  decisions  of  Doe  v.  Gold- 
win,  2  Q,.  B.  143,  and  Wheeler  v.  Montefiore,  ibid.  133,  it  was  declared  in 
Doe  V.  Day,  2  Q,.  B.  147,  that  in  this  course  of  "decision  sufficient  attention 
had  not  been  paid  to  the  certainty  of  time  necessary  to  the  creation  of  a 
valid  chattel  interest  in  land.     It  was  therefore  held,  that  a  covenant  on  the 
part  of  a  mortgagee,  that  he  would  not  enter  without  giving  one  month's 
notice  to  the  mortgagor  to  pay  the  principal  and  interest,  would  not  take 
effect  as  a  lease  to  the  latter  nor  restrain  the  former  from  immediately  bring- 
ing ejectment.  Such  a  clause  would  however  constitute  of  course  a  binding 
executory  agreement  and  would  be  specifically  enforced  in  equity. 

The  decisions  of  the  courts  of  Vermont  and  New  Hampshire,  on  the  law 
of  mortgage,  substantially  coincide  with  those  of  Massachusetts,  and  a  mort- 
gagee remaining  in  possession  after  the  execution  of  the  conveyance,  is 
looked  upon  in  the  same  light  as  are  other  parties  holding  over  after  the 
expiration  of  a  good  title  to  possession.  He  is  therefore  considered  as  a 
tenant  at  sufferance.  Tucker  v.  Kecler,  4  Vermont,  161,  who  may  hold  the 
relation  of  a  tenant  stricth'-  at  will,  if  his  occupation  be  assented  to  by  the 
mortgagee,  but  is  liable  upon  the  adverse  entry  of  the  latter,  to  be  put  in 
the  position  of  a  mere  trespasser,  and  as  such  made  answerable  for  the  amount 
of  the  rents  and  profits  which  have  accrued  during  his  possession  ;  Pettin- 
gall  v.  Evans,  5  New  Hampshire,  54 ;  Morey  v.  M'Guire,  4  Vermont,  327. 
This  course  of  decision  has  since  been  fully  sustained  in  the  recent 
case  of  The  Northampton  Paper  Mills  v.  Ames,  8  Metcalf,  1,  in  which  it 
was  determined  that  upon  the  entry  of  the  mortgagee,  either  before  or  aftet 
the  forfeiture  of  the  condition,  the  mortgagor  and  all  persons  claiming  under 


K  E  E  C  H    V.     HALL.  491* 

him,  subsequently  to  the  date  of  the  mortgage,  become  liable  to  be  treated 
as  trespassers,  and  may  be  made  answerable  in  an  action  of  trespass  for 
iiiesne  profits.  In  Winslow  v.  Merchants'  Insurance  Co.,  4  Metcalf,  306, 
it  was  also  determined,  that  in  the  absence  of  any  stipulation  to  that  effect, 
the  mere  fact  that  the  mortgagor  remained  in  possession  without  inter- 
ference by  the  mortgagee,  was  not  sufficient  to  create  the  relation  of  land- 
lord and  tenant  between  them,  nor  to  entitle  the  former  to  the  removal  of 
fixtures  erected  by  him  since  the  period  of  giving  the  mortgage.  The  court 
therefore  decided  that  where  a  steam  engine  and  boiler  were  erected  by  a 
mortgagor  in  possession,  and  then  specificially  mortgaged  by  him  to  the 
plaintiff;  the  latter  was  not  entitled  to  them  as  against  the  party  claiming 
under  the  mortgage  of  the  realty,  although  prior  to  the  date  of  their  erection. 
This  decision  was  confirmed  in  the  subsequent  case  of  Butler  v.  Page,  7 
Metcalf,  40. 

.The  exposition  of  the  relations  subsisting  between  the  mortgagor  and 
Ihe .  mortgagee,  contained  in  these  cases,  must  be  considered  as  in  accord- 
ance both  with  irrlnciple  and  authority,  and  when  examined,  in  contrast 
with  the  decisions  of  the  Courts  of  New  York  on  the  same  subject,  who 
have  professed  not  to  confuse  legal  with  equitable  principles,  must  be 
regarded  as  following-  much  more  closely  the  doctrines  of  the  common  law, 
without,  it  would  seem,  interfering  with  the  practical  rights  and  mutual 
understanding  of  the  parties  to  the  mortgage. 

,At  the  same  time,  however,  even  the  courts  of  Massachusetts,  have  found 
it  difKcult,  or  impossible,  to  pursue  with,  regard  to- this  subject,  the  strict 
rules  of  the  law,  since  in  addition  to  the  cases  already  cited,  in  which  the 
widow  of  the  mortgagor  Avas  held  entitled  to  dower,  and  his  assignee  to 
maintain  an  action  of  entry  against  third  parties,  tiiey  have  determined  that 
covenants  capable  of  running  with  land,  will  pass  by  the  assignment  of  an 
equity  of  redemption,  even  when  arising  under  a  conveyance  of  the  legal 
estate  by  mortgage,  made  by  the  covenantee,  before  the  assignment  of  such 
equity,  to. the  party  seeking  to  take  advantage  of  the  covenant.  In  such 
a  case,  it  was  held  by  the  court,  that  the  mortgagee,  as  taking  by  a  condi- 
tional assignment  of  the  legal  estate,  and  the  subsequent  assignee  of  the 
equity  of  redemption,  would  both  have  a  right  of  suit  on  the  covenants  made 
by  the  original  grantor,  according  to  the  damage  which  they  sustained  by 
the  breach,  and  their  respective  interests  in  the  land.  White-v.  Whitney, 
3  Metcalf,  83. 

It  has  been  decided  in  New  York,  that  the  mortgagor  is  not  a  tenant, 
within,  the  meaning  of  the  acts,  giving  summary  remedies,  for  obtaining 
possession  to  landlords,  and  consequently,  that  a  recovery  by  the  mortgagee 
under  those  acts  is  invalid.  Roach  v.  Cosine,  9  Wendell,  237  ;  S.  P.  5  do. 
285. 

H. 


Vol.  I.— 32 


498  smith's   leading   cases. 


[*3oo]  *wigglesworth:  V.  dallison. 

TRINITY.— 19  GEO.  3. 
[[reported  dougl.  201.] 

A  custom  that  a  tenant,  whether  by  parol  or  deed,  shall  have  the  way-going  crop,     . 
after  the  expiration  of  his  term,  is  good,  if  not  repugnant  to  the  lease  by  which  ho 
holds. 

This  was  an  action  of  trespass  for  mowing,  carrying  away,  and  convert- 
ing to  the  defendant's  own  use,  the  corn  of  the  plaintiff,  growing  in  a  field 
called  Hibaldstow  Leys,  in  the  parish  of  Hibaklstow,  in  the  county  of  Lin- 
coln.    The  defendant  Dallison  pleaded  liberum  lenemenliim,  and  the  other 
defendant  justified  as  his  servant.     The  plaintiff  replied,  that  true  it  was 
that  the  locus  in  quo  was  the  close,  soil,  and  freehold  of  Dallison  ;  but,  after 
stating  that  one  Isabella  Dallison,  deceased,  being  tenant  for  life,  and  Dalli- 
son the  reversioner  in  fee,  made  a  lease  on  the  2d  of  March,  1753,  by  which 
the  said  Isabella  demised,  and  the  said  Dallison  confirmed,  the  said  close  to 
the  plaintiff",  his  executors,  administrators,  and  assigns,  for  twenty-one  years, 
to  be  computed  from  the  1st  of  May,  1755,  and  that  the  plaintiff',  by  virtue 
thereof,  entered  and  continued  in  possession,  till  the  end  of  the  said  term  of 
twenty-one   years, — he   pleaded  a  custom,  in  the  following  words,  viz. 
"  That,  within  the   parish  of  Hibaldstow,  there  now  is,  and,  from  time 
whereof  the  memory  of  man  is  not  to  the  contrary,  there  hath  been  a  cer- 
tain ancient  and  laudable   custom,  there   used   and  approved  of,  that  is 
to  say,  that  every  tenant   and  farmer  of  any  lands  within  the  same  parish, 
for  any  term  of  years  which   hath  expired  on  the  first  day  of  May  in 
any  year,  hath  been  used  and  accustomed,  and  of  right  ought,  to  have, 
take,  and  enjoy,    to  his    own   use,  and  to  reap,   cut,    and   carry  away, 
when  ripe  and  fit  to  be  reaped  and  taken  away,  his  way-going  crop,  that 
is  to  say,  all  the  corn  growing  upon  the    said  lands  which   hath  before 
the  expiration  of  such   term   been  sown  by  such  tenant  upon  any  part  of 
such  lands,  not  exceeding  a  reasonable  quantity  thereof  in  proportion  to  the 
residue  of  such  lands,  according  to  the  course  and  usage  of  husbandry  in 
the  same  parish,  and  which  hath  been  left  standing  and  growing  upon  such 
lands  at  the  expiration  of  such  term  of  years."     He  then  stated  that,  in  the 
year  1775,  he  sowed  with  corn  part  of  the  said  close,  being  a  reasonable 
part  in  proportion  to  the  residue  thereof,  according  to  the  course  and  usage 
of  husbandry  in  the  said  parish,  and  that  the  corn  produced  and  raised  by 
such  sowing  of  the  corn  so  sown  as  aforesaid,  being  the  corn  in  the  declara- 
tion mentioned,  at  the  end  of  the  term,  and  at  the  time  of  the  trespass  com- 
mitted, was  standing  and  growing  in  the  said  close,  the  said  time  not  exceed- 
ing a  reasonable  time  for  the  same  to  stand,  in  order  to  ripen  and  become 
fit  to  be  reaped,  and  that  he  was  during  all  that  time  lawfully  possessed  of 


WIGGLESWORTH    V.     DALLISOK.  499 

the  said  corn,  as  his  absolute  property,  by  virtue  of  the  custom.  The 
defendant,  in  his  rejoinder,  denied  the  existence  of  such  custom,  and  con- 
cluded to  the  country.  The  cause  was  tried  before  Eyre,  Baron,  at  the 
last  assizes  for  Lincolnshire,  when  the  jury  found  the  custom  in  the  words 
of  the  replication. 

Baldiuin  moved,  in  arrest  of  judgment,  that  such  a  custom  was  repug- 
nant to  the  terms  of  the  deed,  and  therefore,  though  it  might  be  good  in 
respect  to  parole  leases,  could  not  have  a  legal  existence  in  the  case  of 
leases  by  deed.  He  relied  on  Trumper  v.  Carwardine,  before  Yates,  Jus- 
tice,(o)  the  circumstances  of  which  case  were  these  : 

"  The  plaintiff  had  been  lessee  under  the  corporation  of  Hereford  for  a 
term  of  twenty-one  years,  which  expired  on  the  4th  of  December,  1767. 
In  the  lease  there  was  no  covenant  that  the  tenant  should  have  his  off-going 
crop.  In  the  seed  time,  before  the  expiration  of  the  term,  he  sowed  the  fal- 
low with  wheat.  The  succeeding  tenant  obstructed  him  in  cutting  the 
wheat  when  it  became  ripe,  and  cut  and  housed  it  himself,  for  his  own  use. 
Upon  this  the  plaintiff  brought  an  action  on  the  case,  and  declared  on  a 
custom  in  *Herefordshire  for  tenants  who  quit  their  farms  at  Christ-  p#qoi~i 
mas  or  Candlemas  to  reap  the  corn  sown  the  preceding  autumn.  L  -' 
Yates,  Justice,  held  that  the  custom  could  not  legally  extend  to  lessees  by 
deed,  though  it  might  prevail,  by  implication,  in  the  case  of  parole  agree- 
ments. That,  in  the  case  of  a  lease  by  deed,  both  parties  are  bound  by  the 
express  agreements  contained  in  it,  as  that  the  term  shall  expire  at  such  a 
day,  &c. ;  and,  therefore,  all  implication  is  taken  away.  That,  if  such  a 
custom  could  be  set  up,  the  Statute  of  Frauds  would  be  thereby  superseded 
in  Herefordshire. (i)  Accordingly  the  plaintiff  did  not  recover  on  the  cus- 
tom, although  on  another  count  in  trover,  in  the  same  declaration,  he  had  a 
verdict." 

A  rule  to  show  cause  was  granted. 

The  case  was  argued  on  Tuesday,  the  8th  of  June,  by  Hill,  Serjeant, 
Chambre,  and  Dayrell,  for  the  plaintiff,  and  Cust,  Baldwin,  Balguy,  Gough, 
for  the  defendants ;  when  three  objections  were  made  on  the  part  of  the 
defendants,  viz.:  1.  That  the  custom  was  unreasonable.  2.  That  it  was 
uncertain.  3.  That,  as  had  been'contended  on  moving  for  the  rule,  it  was 
repugnant  to  the  deed  under  which  the  plaintiff  had  held. 

For  the  plaintiff  it  was  argued,  1.  That  it  was  not  an  unreasonable  cus- 
tom, because,  without  an  express  agreement,  or  such  a  custom  as  this,  there 
could  be  no  crop  the  last  year  of  a  term,  for  the  tenant  would  not  sow,  if 
he  could  not  reap,  and  the  landlord  would  not  have  a  right  to  enter  till  the 
expiration  of  the  term.  That  it  was  for  the  advantage  of  the  public  as 
much  as  customs  for  turning  a  plough,  or  drying  nets,  on  another  person's 
land,  which  had  been  held  to  be  good.(c)  That  it  bore  a  great  analogy  to 
the  right  of  emblements,  and  was  founded  on  the  same  principle,  namel}% 
the  encouragement  of  agriculture.  It  was  not  prejudicial  to  any  one  ;  not  to 
the  landlord,  because  without  it  his  land  must  be  unemployed  and  unpro- 

(a)  At  the  summer  assizes  for  Herefordshire,  1769. 

(6)  Qu.  This  argument  seems  more  applicable  to  parol  leases,  because,  if  a  parol  lease 
for  three  years  could  be  extended  in  some  degree  for  half  a  year  longer  by  such  a  custom, 
it  might  be  said  that  this  would  be  repugnant  to  the  Statute  of  Frauds. 

(fi)  Vide  Davis,  32,  b. 


500  smith's  le  ad  ino  .casj:s. 

ductive  for  a  whole.season  ;  nor  to  the  saxJceeding  tenau.t,  bJecatf^e  he  would 
have  his  turn  at  the  end  of  his  term.  2.  That  it  was  sufficiently  certain 
by  the  reference  to  the  residue  of  the  lands  not  sown,  and  to  the  course  and 
usage  of  husbandry  in  the  parish.  This  is  as  much  ceitainty  as  the  nature 
of  the  subject  will  admit  of;  for,  if  it  had  been  that  so  many  acres  might 
^  be  sown  and  reaped,  that  would  have  been  ^incompatible  with  those 

L  J  variations  in  the  p^qoortion  of  ploughed  land,  which  arise,  at  dif- 
ferent times,  from  circumstances  in  the  course  of  cultivation  and  husbandry. 
Reasonable  is  an  epithet  which  sufficiently  qualifies  the  extent  of  customs, 
and  is  generally  used  in  pleading  them ;  as  with  regard. to  customary  fines 
paid  to  the  lord  of  a  manor,  estovers  prescribed  for  by  a  party  to  be  taken 
for  the  use  of  his  house,  &c.  In  the  case  of  Bennington  v.  Taylor,  reported 
in  Lutwyche(a)  where  the  defendant,  in  an  action  of  trespass,  had  pleaded 
a  right  to  distrain  for  twelve  pence  for  stallage,  due  by  prescription,  for  the 
land  near  every  stallin  a  fair,  and,  on  a  motioix  in  arrest  of  judgment,  it 
was  objected,  that  the  prescription  was  uncertain,  and  therefore  void,  the 
quantity  of  land  not  being  ascertained,  the  court  held  it  to  he  certain  enough, 
because  the  quantity  Avasto  be  ascertained  by  the  common  usage  in  the  fair. 
In  all  such  cases,  whether  the  quantity  or  amount  is  in  truth  reasonable  or 
not,  is  for  the  jury  to  decide.  'S.  That  the  circumstance  of  the  plaintiff's 
lease  in  this  case  having  been  by  deed,  made  no  difference.  There  was  no 
agreement  contained  in  the  deed,  that,  the  defendant  would  depart  from  the 
custom,  although  the  parties  must  have  known  of  it  when  the  lease  was 
executed.  He  did  not  claim  under  any  parol  contract  express  or  implied ; 
and,  therefore,  the  argument  of  repugnancy  did  not  apply  ;  and  the  Nisi 
Prius  case  which  had  been  cited,  went  upon  mistaken  reasoning.  MiU, 
Serjeant,  admitted,  that  he  knew  of  no  instance  in  the  Reports,  of  a  similar 
custom  to  this,  in  the  case  of  freehold  property ;  but  he  said  there  were 
several  with  regard  to  copyholds  that  went  much  .farther  ;  and  he  cited  East- 
court  V.  Weekes,  T.  10  \V.  3,  1  Lutw.  799.  801, -where  a  custom,  that  the 
executors  and  administrators  of  every  customary  tenant  for  life,  if  he  should,, 
die  between  Christmas  and  Lady-day,  should  hold  over  till  the  Michaelmas 
following,  is  stated  on  the  pleading  ;(&)  and  no  objection  taken  to  it  on  the 
argument  of  the  case. 

For  the  defendant  were  cited,  Grantham  v.  Hawley  ;(c)  White  v.  Sayer,(fZ) 
in  which  last  case  a  custom  for  a  lord  of  a  manor  "  to  have  common  of  pas- 
ture in  all  the  lands  of  his  tenants  for  life  or  years,"  which  had  been  plead- 
ed in  justification  of  a  trespass  in  the  land  of  a  tenant  for  years,  was  held  to 
be  void  and  against  law,  for  that  such  a  privilege  is  contrary  to  the  lease, 
^  -,  being  part  of  the  thing  demised,  *and  different  from  a  prescription 
L  *  J  to  have  a  heriot  from  every  lessee  for  life,  because  that  is  only  col- 
lateral, (c)     A  case  relied  on  by  Houghton,  Justice,  in  White  v.  Sayer,(/) 

(a)  C.  B.  E.  or  T.  12  W.  3,  2  Lutw.  1517.  1519. 

(6)  It  i.s  found  by  the  special  verdict,  the  action  being  fjecHncni. 

(c)  'I'.  13  Jac.  1.  Hob.  132.  That  case,  if  at  all  applicable,  seems  to  me  to  make  for 
the  plaintiff,  It  is  curious  in  one  resj^ect,  viz.,  that  the  question  was  brought  on  in  an 
action  of  debt  on  a  common  bond  conditioned  for  tlie  payment  of  20/.  to  the  plaintiff,  if  a 
certain  crop  of  corn  did  of  right  belong  to  him;  or,  in  other  words,  if  the  question  of  law 
was  in  his  favour. 

C*^)  B.  R.  M.  19  Jac.  1  Palm.  211. 

ie)  Cites  21  H.  7.  14.  (/)  B.  R.  M.  19  Jac.  1.  Palm.  211. 


WIGGLES  W  OUT  HV.     DALLISON.  5pl 

w'tvMclr  he  said  the  court  had  decided  that  e£  custom  for  lessees  for  yeaJfSt 
to  have  half  a  year  after  the  end  of  their  term,  to  remove  their  utensils,  was 
void,  as  being-  against  law  ;  Starpup  v.  Dodderidge,(c)  where  the  court 
refused  to  grant  a  prohibition,  on  the  suggestion  of  a  modus  «  to  pay,  upon 
request,  at  the  rate  of  two  shilHngs  for  every  pound  of  the  improved  yearly 
rent  or  value  of  the  land,"  because  the  yearly  rent  or  value  were  variable 
.and  uncertain;  Nailor,  qui  tarn,  v.  Scott,(f?)  where  a  custom  having  been 
found  by  a  jury,  "  that  every  housekeeper  in  the  parish  of  Wakefield,  hav- 
ing a  child  born  there,  should,  at  the  time  when  the  mother  was  churched, 
or  at  the  usual  time  after  her  delivery  when  she  should  be  churched,  pay 
ten  pence  to  the  vicar,"  the  court,  on  a  motion  in  arrest  of  judgment,  deter- 
mined that  the  custom  was  void,  being-,  1,  uncertain,  because  the  usual  time 
for  women  to  be  churched  was  not  alleged  ;(e)  2,  unreasonable,  because  it 
obliged  the  husband  to  pay  if  the  woman  was  not  churched  at  all,  or  if  sh.e 
removed  fronn  the  parish,  or  died  before  the  time  of  churching :  C.arletoa  v, 
Brightwell,(/)  where  the  defendant,  on  a  bill  for  tithes,  set  up  a  modus' 
that  "  the  inhabitants  of  such  a  tenement,  with  the  lands  usually  enjoyed 
therewith,  should  pay  such  a  sum  for  tithe  corn,"  and  it  was  held  by  the 
Master  of  the  Rolls  to  be  void  for  uncertainty  ;  Harrison  v.  Sharp,(g-)  where 
a  modus  that,  "when  any  of  the  inclosed  pastures  in  a  certain  villvYere 
ploughed  and  sown  with  corn  or  grain  of  any  kind,  or  laid  for  meadow,  and 
mown  and  made  into  hay,  tithes  in  kind  were  paid  to  the  rector,  but  when 
eaten  and  depastured,  then  the  occupier  paid  to  the  vicar  one  shilling  ia 
the  pound  of  the  yearly  rent  or  value  thereof,  and  no  more,  upon  some  day 
after  Michaelmas,  yearly,"  was  held  void,  on  the  authority  of  Starpup  v, 
Dodderidge  ;  Wilkes  v.  Broadbent,(/i)  where  the  Court  of  Common  Pleas, 
and  afterwards,  on  error  brought,  the  Court  of  King's  Bench,  held  a  custom 
found  by  verdict,  "  for  the  lord  of  a  manor,  or  the  tenants  of  his  colleries 
who  had  sunk  pits,  to  throw  the  earth  and  coals  on  the  land  near  such  pits, 
such  land  being  customary  tenement  and  part  of  the  manor,  there  to  con- 
tinue, and  to  lay  and  continue  *wood  there  for  the  necessary  use  of  rton^-j 
the  pits,  and  to  take  coals  so  laid,  away  in  carts,  and  to  burn  arid  '-■ 
make  into  cinders  coals  laid  there,  at  their  pleasure,"  to  be  void,  because, 
among  other  reasons,  the  word  near  was  toO  vagtie  and  uncertain  ;  Oland  v. 
Burdwick,(/)  where  a  feme  copyholder  durante  viduitate,  having  sowed  the 
land,  and  then  married,  it  was  determined  that  the  lord  should  have  the  corn, 
upon  the  principle,  that,  when  the  interest  in  land  is  determined  by  the  act 
of  the  party,  he  shall  not  have  the  crop  :  an  anonymous  case  in  Moore, (^) 
where  it  was  held,  that  a  custom,  "that  lessee  for  years  should  hold-  for 
half  a  year  over  his  term,"  was  bad  ;  Roe,  lessee  of  Bree  v.  Lees,(/)  where, 
in  an  ejectment  to  recover  a  farm  of  about  sixty  acres,  of  which  fifty-one 
were  inclosed,  and  nine  lay  in  certain  open  fields,  a  special  case  was  re- 
S€?ry0drWKich  stated  a  custom,  "that  when  a  tenant  look  a  farm,  in  which 

(c)  E.  4  Ann.  9  Lord  Raym.  1158  ;  2  Salk.  657  ;  I  Mod.  60. 

0/)  E.-2  G;2.  2Lord  Raym.  1558. 

(c)  ill  that  case,  the  cii«tom,  as  suggested,  did  not  refer  to  the  usage  of  the  parish. 

(/■)  C'a:nc.T:i728.  2P.  W.4G2.     '  (^)  T.  174.  Buub.  1724. 

(li)  B.  R.  E.  1&  G.  2.  2  Str.  1224. 

(i)  B.  R.  11.  37  El.  Cro.  Eiiz.  460  j  5  Co.  116.  (k)  H.  3  Ed.  6.  Moore,  8.  pL  27. 

(/)  C.  B.  M.  18  G,  3.     Since  reported  in  2  Blackst.  1171. 


502  smith's   leading   cases. 

there  was  any  open  field,  more  or  less,  for  an  uncertain  term, 'it  was  consi- 
dered as  a  holding  from  three  years  to  three  years  ;"  and  though  the  court 
decided  against  the  custom  on  other  grounds,  yet,  by  their  reasoning,  it 
clearly  appeared  that  they  thought  it  void  for  uncertainty,  because  the 
quantity  of  open  ground  was  not  ascertained,  and  one  rood  might  determine 
the  tenure  of  100  acres  of  land  inclosed.  Besides  the  above  authorities, (6) 
the  case  before  Yates,  Justice,  was  much  relied  on.  It  was  admitted,  that, 
in  cases  where  the  usual  crop  of  the  country  is  such,  that  it  cannot  come  to 
maturity  in  one  year,  a  right  to  hold  over  after  the  end  of  the  term,  in  a 
parol  demise,  may  be  raised  by  implication  ;  as  where  safTron  is  cultivated, 
in  Cambridgeshire,  liquorice,  near  Pontefract,  or  tobacco,  which  formerly 
used  to  be  planted  in  Lincolnshire ;  but  it  was  contended,  that,  in  such 
cases,  a  lease  by  deed  would  preclude  such  implication,  as  the  parties  must 
be  supposed  to  have  described  all  the  circumstances  relative  to  the  intended 
tenure  in  the  written  instrument.  Such  a  custom  as  that  set  up,  in  the 
present  case,  could  not,  it  was  said,  be  of  sufficient  antiquity  with  respect  to 
leases  by  deed,  as  in  the  time  of  Richard  I.,  and,  long  afterwards,  tenants 
had  no  permanent  interest  in  their  lands  ;  or,  if  there  could  be  such  a  cus- 
tom, the  plaintifi's  lease  could  not  be  within  it,  because  the  custom  must 
-.  have  applied  to  the  first  of  May,  old  style,  and  *this  lease  was 
L  -I  made  and  commenced  after  the  alteration  was  introduced  by  24  Geo. 
2,  c.  23. (c) 

The  court  took  time  to  consider ;  and  this  day.  Lord  Mansfield  delivered 
their  opinion  as  follows  : 

Lord  Mansfield. — We  have  thought  of  this  case,  and  we  are  all  of  opinion, 
that  the  custom  is  good.  It  is  just,  for  he  who  sows  ought  to  reap,  and  it 
is  for  the  benefit  and  encouragement  of  agriculture.  It  is,  indeed,  against 
the  general  rule  of  law  concerning  emblements,  which  are  not  allowed  to 
tenants  who  know  when  their  term  is  to  cease,  because  it  is  held  to  be  their 
fault  or  folly  to  have  sown,  when  they  knew  their  interest  would  expire 
before  they  could  reap.  But  the  custom  of  a  particular  place  may  rectify 
Avhat  otherwise  would  be  imprudence  or  folly.  The  lease  being  by  deed 
does  not  vary  the  case.  The  custom  does  not  alter  or  contradict  the  agree- 
ment in  the  lease  ;(f/)  it  only  superadds  a  right  which  is  consequential  to 
the  taking,  as  a  heriot  may  be  due  by  custom,  ahhough  not  mentioned  in 
the  grant  or  lease. 

The  rule  discharged. (e) 

(ft)  4  Co.  51,  b.  1  Roll.  Abr.  563,  pi.  9,  ct  Co.  Litt,  55,  were  also  cited  for  the  general 
principles  concerning'  customs  and  emblements. 

(c)  Tiie  new  style  commenced  the  1st  of  January,  17">3.  But  if  this  argument  were 
admitted  in  its  full  extent,  no  custom  could  exist  where  a  certain  day  of  tlie  month  made 
part  of  it,  as  from  the  errors  in  the  former  method  of  computation,  the  nominal  day  was 
continually  deviating,  by  degrees,  from  the  natural  day. 

{d)  Vide  Doe  v.  .Snowden,  C.  B.  M.  ID  Geo.  3,  2  Black.  1225,  where  it  is  said  by  the 
court,  that  if  there  is  a  taking  from  Old  Ladyday,  (5th  5pril)  the  custom  of  most  countries 
would  entitle  tlie  lessee  to  enter  upon  the  arable  at  C'a  ndlemas,  (2nd  of  February)  to  prepare 
for  the  Lent  corn,  without  any  special  words  for  that  purpose,  i.  e.  in  a  written  agreement 
for  seven  years  ;  for  the  court  were  speaking  of  such  an  agreement. 

(e)  Judgment  was  accordingly  entered  for  the  plaintiff,  upon  which  a  writ  of  error  was 
brou'J'ht,  in  the  Excliequcr  Chamber,  and  the  defendant  assigned  for  errors,  "that  the  cus- 
tom obtained  and  set  forth,  &c.,  is  a  custom  void  in  law,  and  is  contrary  to  and  inconsist- 
ent with  the  said  indenture  of  lease  in  the  said  replication  mentioned."  The  case  was 
argued  at  Serjeant's  lun,  before  tlie  Judges  of  C,  B.,  and  the  Barons  of  the  Eichcqucr,  by 


WIGGLES  WORTH     V.     DALLISON. 


503 


Few  question  are  of  more  frequent 
practical  occurrence  than  those  which 
involve  the  admissibility  of  parol  evi- 
dence of  custom  and  usage,  for  the 
purpose  of  annexing  incidents  to,  or 
explaining  the  meaning  of,  written  con- 
tracts. In  one  of  the  last  cases  on  the 
subject,  tlie  following  luminous  account 
of  this  head  of  the  law  was  given  by 
Parke,  B.,  delivering  the  judgment  of 
the  Court  of  Exchequer.  1  Mee.  & 
Welsb.  474. 

"  It  has  been  long  settled,"  said  his 
lordship,  "  that  in  commercial  transac- 
tions, extrinsic  evidence  of  custom  and 
usage  as  admissible  to  annex  incidents 
to  written  contracts,  in  matters  with 
respect  to  which  they  are  silent.  The 
same  rule  has  also  been  applied  to  con- 
tracts in  other  transactions  of  life,  in 
which  known  usages  have  been  estab- 
lished and  prevailed  ;  and  this  has  been 
done  upon  the  principle  of  presumption 
that,  in  such  transactions,  the  parties 
did  not  mean  to  express  in  writing  the 
whole  of  the  contract  by  which  they  in- 
tended to  be  bound,  but  to  contract  with 
reference  to  those  known  usages.  Whe- 
ther such  a  relaxation  of  the  common 
law  was  wisely  applied  where  formal 
instruments  have  been  entered  into,  and 
particularly  leases  under  seal,  may  well 
be  doubted  ;  but  the  contrary  has  been 
established  by  such  authority,  and  the 
r*'^Ori  *''6lations  between  landlord  and 
L  -'  tenant  have  so  long  been  regu- 
lated upon  the  supposition  that  all  cus- 
tomary obligations  not  altered  by  the 
contract  are  to  remain  in  force,  that  it 
is  too  late  to  pursue  a  contrary  course  ; 
and  it  would  be  productive  of  much  in- 
convenience if  this  practice  were  now 
to  be  disturbed. 

"  The  common  law,  indeed,  does  so 
little  to  prescribe  the  relative  duties  of 
landlord  and  tenant,  since  it  leaves  the 
latter  at  liberty  to  pursue  any  course  of 
management  he  pleases,  provided  he  is 
not  guilty  of  waste,  that  it  is  by  no 
means  surprising  tliat  the  court  should 
have  been  favourably  inclined  to  the 
introduction  of  those  regulations  in  the 
mode  of  cultivation,  which  custom  and 
usage  have  established  in  ^ach  district 
to  be  the  most  beneficial  to  all  parties. 
"  Accordingly,    in    Wigglesworth  v. 


Dallison,  afterwards  affirmed  on  a  writ 
of  error,  the  tenant  was  allowed  an 
away-going  crop,  though  there  was  a 
formal  lease  under  seal.  There  tiie 
lease  was  entirely  silent  on  the  subject 
of  such  a  right ;  and  Lord  Mansfield 
said  the  custom  did  not  alter  or  contra- 
dict the  lease,  but  only  added  something 
to  it. 

"  The  question  subsequently  came 
under  the  consideration  of  the  Court  of 
King's  Bench  in  Senior  v.  Armitage, 
reported  in  Mr.  Holt's  Nisi  Prius  Cases, 
p.  197.  In  that  case,  which  was  an  ac- 
tion by  a  tenant  against  his  landlord  for 
a  compensation  for  seed  and  labour, 
under  the  denomination  of  tenant-right, 
Mr.  Justice  Bayley,  on  its  appearing 
that  there  was  a  written  agreement  be- 
tween the  parties,  nonsuited  the  plain- 
tiff. The  court  afterwards  set  aside 
that  non-suit,  and  held,  as  appears  by  a 
manuscript  note  of  that  learned  Judge, 
that,  though  there  was  a  written  con- 
tract between  landlord  and  tenant,  the 
custom  of  the  country  would  still  be 
binding,  if  not  inconsistent  with  the 
terms  of  such  written  contract;  and 
that,  not  only  all  common  law  obliga- 
tions, but  those  imposed  by  custom, 
were  in  full  force  where  the  contract 
did  not  vary  them.  Mr.  Holt  appears  to 
have  stated  the  case  too  strongly  when 
he  said  that  the  court  held  the  custom 
to  be  operative,  "  unless  the  agreement 
in  express  terms  excluded  it;"  and  pro- 
bably he  has  not  been  quite  accurate  in 
attributing  a  similar  opinion  to  the  Lord 
Chief  Baron  Thompson,  who  presided  on 
the  second  trial.  It  would  appear  that 
the  court  held  that  the  custom  operated, 
unless  it  could  be  collected  from  the  in- 
strument, either  expressly  or  impliedly, 
that  the  parties  did  not  mean  to  be  gov- 
erned by  it. 

"  On  the  second  trial,  the  Lord  Chief 
Baron  Thompson  held  that  the  custom 
prevailed  ;  although  the  written  instru- 
ment contained  an  express  stipulation 
that  all  the  manure  made  on  the  farm 
should  be  spent  on  it,  or  left  at  the  end 
of  the  tenancy,  without  any  compensa- 
tion being  paid.  Such  a  stipulation  cer- 
tainly does  not  exclude  by  implication 
the  tenant's  right  to  receive  a  compen- 
sation for  seed  and  labour. 


Balguy,  for  the  plaintiff  in  error,  and  Chambre  for  the  defendant.  The  objection  to  the 
reasonableness  of  tlie  custom  was  abandoned.  In  T.  21  G.  (27tli  June,  1781,)  Lord 
Loughborough  delivered  the  unanhnous  opinion  of  the  Court  of  Exchequer  Chamber,  that 
the  custom  was  good  ;  and  the  judgment  was  affirmed. 


504 


smith's  leading   cases. 


"  The  next  reported  <;ase  on.this  sub- 
ject is  Webb  v.  Plummer,  2  B.  &  A. 
750;  in  which  there  vvas  a  lease  of 
down  lands,  with  a  covenant  to  spend  all 
the  produce  on  the  premises,  and  to  fold 
a  flock  of  sheep  upon  the  usual  part  of 
the  farm  ;  and  also,  in  the  last  year  of 
the  term  to  carry  out  the  manure  on 
parts  of  the  fallowed  farm  pointed  out  by 
the  lessor,  the  lessor  paying  for  the  fal- 
lowing land  and  carrying  out  the  dung< 
but  nothing  for  the  dung  itself,  and  pay- 
ing for  grass  on  the  ground,  and  thresh- 
ing the  corn.  The  claim  was  for  a 
customary  allowance  for  foldage,  (a 
mode  of  manuring  the  land ;)  but  the 
court  held,  as  there  was  an  express 
provision  for  some  payment,  on  quitting, 
for  the  things  covenanted  to  be  done, 
and  an  omission  of  foldage,  the  custom- 
ary obligation  to  pay  for  the  latter  was 
excluded.  No  doubt  could  exist  on  that ; 
the  language  in  tiie  lease  was  equivalent 
to  a  stipulation  that  the  lessor  should  pay 
for  the  things  mentioned,  and  no  more. 

"The  question  then  is,  whether  from 
the  terms  of  the  lease  now  under  consi- 
deration, it  can  be  collected  that  the 
.parties  meant  to  exclude  customary  al- 
lowance for  seed  and  labour." 

In  the  case  from  which  the  above  is 
extracted,  viz  Ilutton  v.  Warren,  1 
Mee.  &  Wei.  4G6,  a  custom  by  which 
the  tenant,  cultivatmg  according  to  the 
course  of  good  husbandry,  was  entitled, 
on  quitting,  to  receive  a  reasonable  al- 
lowance,in  respect  of  seed  and  labour 
r  *'^07  T  bestowed  on  *the  arable  land 
L  '  J  intlie  last  year  of  his  tenancy, 
and  was  bound  to  leave  tlie  manure  for 
the  landlord,  if  he  would  purchase  it, 
was  held  not  to  be  excluded  by  a  stipu- 
lation in  the  lease  that  he  would  con- 
sumo  three-fourths  of  the  hay  and  straw 
on  the  farm,  and  spread  the  manure 
arising  therefrom,  and  leave  such  of  it 
as  should  not  bo  so  spread  on  the  land, 
on  receiving  a  reasonable  price  for  it. 

From  the  above  luminous  judgment  of 
Baron  Parke  it  may  be  collected,  that 
evidence  of  custonj  or  usage  will  be  re- 
ceived to  annex  incidents  to  written 
contracts  on  matters  with  respect  to 
which  they  are  silent. 

1st.  In  contracts  between  landlord 
and  tenant. 

2nd.    In  commercial  contracts. 

3rd.  In  contracts  in  other  transac- 
tions of  life,  in  which  known  usages 
have  been  established  and  prevailed. 

But  that  such  evidence  is  only  receiv- 


able Vihevy  the  incident  wKfch  it  is-sqtjgbt 
to  Import  into  the  contract  is  coi;>s-iwtent 
with  the  terras  of  the  written  instru- 
ment. If  inconsistent,  the  evidence  is 
not  receivable,  and  this  inconsistency 
may  be  evinced, 

1st.  By  the  express  terms  of  tho 
written  instrument, 

2nd.     By  implication  therefrom. 

With  respect  to  the  first  class  of  cases 
in  which  the  evidence  has  been  receiv- 
ed, viz.,  that  of  contracts  between  land- 
lord and  tenant,  that  is' so  thoroughly 
discussed  in  Hutton  v.  Warren,  part  of 
the  judgment  in  which  is  above  set  out, 
and  in  Wigglesworth  v.  Dallison,  th& 
principal  case,  that  it  seems  unnecessary 
to  say  more  on  that  head  of  the  subject, 
See  'Holding  v.  Pigott,  7  Bingh,  465; 
Roberts  v.  Barker,  1  C.  &  JM.  803; 
Hughes  v.  Gordon,  1  Bligh,  267;  Cli- 
nan  v.  Cooke,  2  Sch.  &  Lef  22  ;  White 
V.  Sayer,  Palm.  211;  Furley  v.  Wood, 
Esp.  198 ;  Doe  v.  Benson,  4  B.  &  A. 
5S8  ;  [Griffiths  v.  Puleston,  13  M.  &  W. 
35S;  Clarke  v.  Koystone,  Id.  752] 

With  respeet  to  commercial  contracts, 
it  has  been  long  established  that  evi- 
dence of  an  usaffe  of  trade  applicable  to 
the  contract,  and  which  the  parties  mak- 
ing it  knew,  or  may  reasonably  be  pre- 
sumed to  have  known,  is  admissible  for 
the  purpose  of  importing  terms  into  the 
contract  respecting  which  the  written 
instrument  is  silent.  'J'he  words,  "  usage 
of  trade"  arc  to  be  understood  as  refer- 
ring to  a  particular  usage  to  be  estab- 
lished by  evidence,  and  perfectly  dis- 
tinct from  that  general  custom  of 
merchants,  which  is  the  universal  estab- 
lished law  of  the  land,  which  is  to  be 
collected  from  decisions-,  legal  princi- 
ples, and  analogies,  not  from  evidence 
in  pais,  and  the  knowledge  of  which 
resides  in  the  breasts  of  the  judges. 
(See  Vallejo  v.  Wheeler,  Loftt.  6;:51  ; 
Eden  v.  E.  I.  Company,  1  VVm.  Black. 
299;  2  Burr.  1216;  sed  vide  Haille  v. 
■Smith,  1  B.  &  P.  563,  in  which  evi- 
dence of  the  general  custom  of  meiv 
chants  was  received.)  This  distinction, 
indeed,  between  the  general  custom  of 
merchants,  which  is  part  of  the  law  of 
the  realm,  and  the  particular  usages  of 
certain  particular  businesses,  was  not,  it 
seems,  so  clearly  marked  in  former 
times  as  it  is  now  ;  thus  we  find  Buller, 
Justice,  saying,  2  T.  R.  p.  73,  that 
"  within  the  last  thirty  years  (his  lord- 
ship spoke  in  1787,)  the  commercial 
law  of  this  country  has  taken  a  very 


WIGGLES  WORTH    V.    DALLISON. 


505 


different  turn  from  wliat  it  did  before. 
Before  that  period  we  find  that,  in  courts 
of  kw,  all  the  evidence  in  mercantile 
cases  was  thrown  together;  they  were 
left  ^'enerally  to  a  jury,  and  produced  no 
established  principle.  From  that  time 
wc  all  know  the  great  study  has  been 
to  find  some  certain  general  principles 
which  pjiall  be  known  to  all  mankind  ; 
T\ot  only  to  rule  the  iKirticular  case  then 
■^iinder  consideration,  but  serve  as  a  guide 
•for  the  future,"  ■ 

-.-But  with  regard  to  particalar  coni- 
"mercial  usages,  evidence  of  them  is 
admissible  either  to  ingraft  terms  into 
the  contract,  as  in  those  cases  concern- 
ing the  time  for  which  the  underwriters' 
liability  in  respect  of  the  goods  shall 
continue  after  the  arrival  of  the  ship. 
Noble  V.  Kennoway,  Dougl.  510,  jjnd 
see  the  observations  on  this  case  in 
Ougier  v.  Jennings,  1  Gamp.  50:},  n. ; 
Moon  V.  Guardians  of  Witney  Union,  3 
Bingli.  N.  C  817;  or  to  explain  its 
terms,  as  was  done  in  Udhe  v.  Walters, 
3  Camp.  16,  by  showing  that  the  Gulf 
of  Finland,  though  not  so  treated  by 
geographers,  is  considered  by  mercantile 
men  part  of  the  Baltic,  and  in  Hutchin- 
son V.  Bowker,  5  Mee.  &  Welsh.  b'iH, 
where  it  was  proved  that  gond  barley 
and  fine  barley  signified  in  mercantile 
usage  different  things.  [In  Spicer  v. 
Cowper,  1  Q.  B.  424,  where  it  appeared 
tliat  a  pocket  of  hops  contained  more  than 
one  cvvt.,  evidence  was  held  admissible 
to  siiow  that  a  contract  to  deliver  a  cer- 
tain number  of  pockets,  at  100s.  a  pocket, 
was  understood  in  the  hop  trade  to  mean 
at  the  rate  of  100s.  a  cwt.]  See  further 
Robertson  v.  Clarke,  1  Bingh.  445  ;  Bot- 
tomley  v.  Forbes,  5  Bingh.  N.  C.  123^ 
Moxon  V.  Atkins,  3  Camp.  200;  Val- 
Tance  v.  Devvar,  1  Camp.  403,  et  notas ; 
r  *'^n-^  1  *Cochran  v.  lletburg',  3  Esp. 
t  '-su^  J  121 ;  Birch  v.  Depeyster,  1 
Stark.  210  ;  4  Camp.  385 ;  Donaldson 
V.  Forster,  Abb.  on  Shipp.  part.  3,  cap.  1 ; 
Baker  v.  Payne,  1  Ves.  jun.  459;  Raitt 
V.  Milchcll,  4  Camp.  15G;  Lethulier's 
case,  2  Salk.  443;  Charaud  v.  Anger- 
stein,  Peake,  43 ;  Bold  v.  Rayner,  1 
Mee.  &  Welsh,  446;  Powell  v.  Horton, 
2  Bingh.  N.  C.  663  ;  Bowman  v.  Horsey, 
2  M.  &,  Rob.  85.  [The  character  and 
description  of  the  evidence  admissible 
for  tiiis  purpose,  is  tlie  fact  of  a  general 
usage  and  practice  prevailing  in  the 
particular  trade  or  business,  and  not  the 
judgment  or  opinion  of  the  witnesses : 


Lewis  V.  Marshal},  7  M.  &  Gr.  729. 

744.]  .•'■;■: 

So,  in  a  case  not  faHing  within  the 
head  of  mercantile  contracts,  evidence 
has  been  received  to  show  that  by  the 
custom  of  a  particular  district  the  words 
"1,000  rabbits"  meant  1,200  rabbits. 
Smith  V.  Wilson,  3  B.  &  Ad.  723;  and 
see  (/layton  v.  Gregson,  5  A.  &  B.  302. 
[But  in  Hinton  v.  Locke,  5  Hill,  437, 
Bronson,  J,,  said  that  he  should  feel 
great  difficulty  in  subscribing  to  the 
case  of  Smith  v.  Wilson ;  that  it  was 
difficult  to  deny  that  the  evidence  in 
that  case  was  a  plain  contradiction  oT 
the  express  contract  of  the  parties  ;  and 
that  no  usage  or  custom  is  admissible  in 
evidence  where  it  contradicts  the  agree- 
ment of  the  parties.  But  in  Macy  and. 
another  v.  Whaling-  Ins.  Co.  9  Metcalf, 
354,  363 ;  Smith  v.  Wilson  appears  to 
be  approved  ;  and  it  is  remariied  that 
evidence  is  admissible,  to  show  that  the 
contract,  notwithstanding  the  common 
meaning  of  the  language  used,  was  in 
fact  made  in  reference  to  the  usage  in 
the  trade  to  which  the  contract  relates ; 
and  see  also  Brown  v.  Brown,  and 
others,  8  Id.  573.  576.]  So  if  A.  and  B. 
were  to  agree  for  a  lease  it  would  be 
implied  &om  custom  that  the  lessor 
should  prepare  and  the  lessee  pay  for  it. 
Grissell  v,  Robinson,  3  Bingh,  N,  C.  12- 

But  the  admissibility  of  evidence  of 
custom  to  explain  the  meaning  of  a  word 
used  in  any  contract  whatever,  is  sub- 
ject to  this  (|ualification,  viz.,  that  if  an 
Act  of  Parliament  have  given  a  definite 
meaning  to  any  particular  word  denot- 
ing weight,  measure,  or  number,  it  must 
be  understood  to  have  been  used  with 
that  meaning,  and  no  evidence  of  cus- 
tom will  be  admissible  to  attribute  any 
other  to  it ;  per  curiam  in  Smith  v.  Wil- 
son ;  see  also  Hockin  v.  Cooke,  4  T.  R., 
314 ;  The  Master  of  St.  Cross  v.  Lord 
Howard  de  Walden,  0  T.  R.  338  ;  Wing 
V.  Erie,  Cro.  Eliz.  267 ;  Noble  v.  Du- 
rell,  3  T,  R.,  271.  In  Doe  v.  Lea,  II 
East,  312,  it  was?  held,  that  a  lease  by 
deed  of  lands  since  the  new  stylo,  to 
hold  from  the  feast  of  S^  Michael,  must 
mean  Neio  Michaelmas,  and  could  not 
be  shown  by  parol  evidence  to  refer  to 
Old  Michaelmas.  In  P'urley  v.  Wood, 
1  Esp.  193,  Runn.  Eject.  112,  Lord 
Kenyon  had,  under  similar  circumstan- 
ces admitted  parol  evidence  of  the  cus- 
tom of  the  country  to  explain  the  mean- 
ing of  the  word  Michaelmas;  and  the 


506 


SMITHS     LEADING     CASES. 


court,  in  Doe  v.  Lea,  on  hearing  that 
case  cited,  asked  whether  the  holding 
there  was  by  deed,  which  it  does  not 
appear  to  have  been;  and  to  wliich  it 
may  be  added,  that  it  appears  possible 
that  it  was  not  even  in  writing. 

In  Doe  V.  Benson,  4  B.  &  A.  583, 
evidence  of  the  custom  of  the  country 
was  held  admissible  for  the  purpose  of 
showing  that  a  letting  by  parol  from 
Lady-Day,  meant  from  Old  Lady-Day. 
The  court  referred  to  Furley  v.  Wood, 
and  distinguished  that  case  from  Doe  v. 
Lea,  on  the  ground  that  the  letting  there 
was  by  deed,  "  whicii,"  said  Holroyd, 
Justice,  "is  a  solemn  instrument;  and 
therefore  parol  evidence  was  inadmissi- 
ble to  explain  the  expression  Lady-day 
there  used,  even  supposing  that  it  was 
equivocal."  It  is  perhaps  not  easy  to 
conceive  a  distinction,  founded  on  prin- 
ciple, between  the  admissibility  of  evi- 
dence to  explain  terms  used  in  a  deed, 
and  terms  used  in  a  written  contract 
not  under  seal ;  for  though,  when  the 
terms  of  a  deed  are  ascertained  and  un- 
derstood, the  doctrine  of  estoppel  gives 
them  a  more  conclusive  effect  than  those 
of  an  unsealed  instrument;  yet  the  rule 
that  parol  evidence  shall  not  be  admitted 
to  vary  the  written  terms  of  a  contract, 
seems  to  apply  as  strongly  to  a  contract 
without  a  seal  as  with  one;  while,  on 
the  other  hand,  it  appears  from  the  prin- 
cipal case  of  Wiggles  worth  v.  Dallison, 
without  going  further,  that  in  cases 
where  parol  evidence  is  in  other  re- 
spects admissible,  the  fact  tiiat  the  in- 
strument is  under  seal  forms  no  insuper- 
able obstacle  to  its  reception.  Nor 
does  it  seem  necessary,  in  order  to  pre- 
vent a  contradiction  between  Doe  v.  Lea, 
and  Doe  v.  Benson  and  Furley  v.  Wood, 
to  establish  any  such  distinction  between 
deeds  and  other  written  instruments; 
for  in  Doe  v.  Benson  the  letting  seems 
not  to  have  been  in  writing,  so  that  the 
objection  to  the  admission  of  parol  evi- 
dence, founded  upon  the  nature  of  a 
written  instrument,  did  not  arise.  In 
Furley  v.  Wood,  the  letting  was  per- 
haps also  by  mere  parol ;  and  though 
the  evidence  was,  it  is  true,  offered  to 
explain  the  notice  to  quit,  still  it  may 
be  urged,  that  when  the  holding  was 
once  settled  to  commence  from  Old 
Michaelmas,  the  notice  to  quit,  which 
probably  contained  the  words  "  at  the 
expiration  of  your  term,"  or  something 
ejusdem  generis,  must  be  held  to  have 
had  express  reference  to,  and  to  be  ex- 


plained by,  it.  We  must  not  therefore, 
it  is  submitted,  too  hastily  infer  that 
parol  evidence  of  custom  would  be  re- 
ceivable to  explain  a  word  of  time  used 
in  a  lease  in  writing,  but  not  under 
seal. 

Doe  V.  Lea  was  acted  upon  by  the 
Court  of  Common  Pleas  in  Smith  v.  Wal- 
ton, 8  Bingh.  238,  where  the  defendant 
avowed  for  rent  payable  "  at  Martinmas 
to  wit,  November  23rd ;"  the  plaintiff 
pleaded  non  tenuit;  and  a  holding  from 
Old  Martinmas  iiaving  been  proved,  the 
*court  thought  that  the  words  r  ^.iaq  i 
after  the  videlicet  must  be  re-    L  ^ 

jected,  as  inconsistent  with  the  term 
Martinmas,  which  they  thought  them- 
selves bound  by  statute  to  interpret  No- 
vember lltii;  that  no  evidence  was  ad- 
missible to  explain  the  record;  and  that 
there  was,  therefore,  a  fatal  variance 
between  it  and  the  evidence  ;  see  Hock- 
in  V.  Cooke,  4  T.  R.  314;  The  Master 
of  St.  Cross  V.  Lord  Howard  de  Wal- 
den,  6  T.  R.  338 ;  Kearney  v.  King,  2 
B.  &  A.  301 ;  Sprowle  v.  Legge,  1  B. 
&L  C.  16. 

However,  evidence  of  usage,  though 
sometimes  admissible  to  add  to,  or  ex- 
plain, is  never  so  to  vary,  or  to  contra- 
dict either  expressly  or  by  implication, 
the  terms  of  a  written  instrument.  Ma- 
gee  v.  Atkinson,  2  Mee.  &.  Welsh.  442; 
Adams  v.  Wordley,  1  Mee.  &  Welsh. 
374.  Thus,  in  Yeates  v.  Pym,  6  Taunt. 
445,  in  an  action  on  a  warranty  of 
prime  singed  bacon,  evidence  was  of- 
fered of  an  usage  in  the  bacon  trade, 
that  a  certain  latitude  of  deterioration 
called  '-average  taint,"  was  allowed  to 
subsist  before  the  bacon  ceased  to  answer 
the  description  of  prime  bacon.  This 
evidence  was  held  inadmissible,  first  at 
Nisi  Prius,  by  Heatli,  Justice,  and  after- 
wards by  the  Court  of  Common  Pleas. 
In  Blackett  v.  Royal  Exchange  Insur- 
ance Company,  2  Tyrwh.  266,  which 
was  an  action  on  a  policy  upon  'ship, 
&c.,  boat,  and  other  furniture,''  evi- 
dence was  offered  that  it  was  not  the 
usage  of  underwriters  to  pay  for  boats 
slung  on  the  davits,  on  the  larboard 
quarter  ;  but  was  rejected  at  Nisi  Prius, 
and  the  rejection  confirmed  by  the  Court 
of  Exchequer.  "The  objection,"  said 
Lord  Lyndhurst,  delivering  judgment, 
"  to  the  parol  evidence  is,  not  that  it 
was  to  explain  any  ambiguous  words  in 
the  policy,  or  any  words  which  might 
admit  of  doubt,  or  to  introduce  matter 
upon  which  the  policy  was  silent,  but 


WIGGLES  WORTH    V.     DAL  L  ISDN. 


507 


that  it  was  at  direct  variance  with  the 
words  of  the  policy,  and  in  plain  oppo- 
sition to  the  hmgiiage  it  used,  viz., 
that  wliereas  the  "policy  imported  to  be 
upon  ship,  furniture,  and  apparel  gene- 
rally, the  usage  is  to  say,  that  it  is  not 
upon  furniture  and  apparel,  generally, 
but  upon  part  only,  excluding  the  boat. 
Usage  may  be  admissible  to  explain 
whal  is  doubtful,  but  it  is  never  admis- 
sible to  contradict  what  is  plain."  In 
Roberts  v.  Barker,  1  Cr.  &  Mee.  809, 
the  question  was,  whether  a  covenant  in 
a  lease,  whereby  the  tenant  bound  him- 
Bclf  not,  on  quitting  the  land,  to  sell  or 
take  away  the  manure,  but  to  leave  it  to 
be  expended  by  the  succeeding  tenant, 
excluded  the  custom  of  the  country,  by 
which  the  outgoing  tenant  was  bound 
to  leave  the  manure,  and  was  entitled 
to  be  paid  for  it.  The  court  held  that  it 
did.  "  It  was  contended,"  said  Lord 
Lyndhurst,  delivering  judgment,  "that 
the  stipulation  to  leave  the  manure  was 
not  inconsistent  with  the  tenant's  being 
paid  for  what  was  so  left,  and  that  the 
custom  to  pay  for  the  manure  might  be 
ingrafted  on  the  engagement  to  leave  it. 
But  if  the  parties  meant  to  be  governed 
by  the  custom  in  this  respect,  there 
was  no  necessity  for  any  stipulation, 
as  by  the  custom,  the  tenant  would  be 


bound  to  leave  the  manure,  and  would 
be  entitled  to  be  paid  for  it.  It  was 
altogether  idle,  therefore,  to  provide  for 
one  part  of  that  which  was  sufficiently 
provided  for  by  the  custom,  unless  it 
was  intended  to  exclude  the  other  part." 
See  further  Reading  v.  Menham,  1  M. 
&  Rob.  236. 

I-ord  Eldon,  in  Anderson  v.  Pitcher, 
2  B.  &  P.  108,  expressed  an  opinion, 
that  the  practice  of  admitting  usage  to 
explain  contracts  ought  not  to  be  ex- 
tended. In  Cross  v.  Eglin,  2  B.  &  Ad. 
106,  evidence  had  been  offered  for  the 
purpose  of  showing  tiiat  the  plaintiffs, 
who  had  contracted  for  "  300  quarters 
(jnore  or  less)  of  foreign  rye,^''  could 
not,  consistently  with  the  usage  of  trade, 
be  required  to  receive  so  large  an  excess 
as  45  quarters  over  the  300;  the  ques- 
tion as  to  the  admissibility  of  the  evi- 
dence ultimately  proved  immaterial ; 
but  Littledale,  Justice,  said  that  where 
words  were  of  such  general  i/nporl,  he 
should  feel  much  difficulty  in  saying 
that  evidence  ought  to  be  received  to 
ascertain  their  meaning. 

When  evidence  of  usage  is  admitted, 
evidence  may  be  given  in  reply,  tending 
to  show  such  usage  to  be  unreasona- 
ble. Bottomley  v.  Forbes,  5  Bmgh.  N. 
C.  128. 


The  usage  of  a  particular  trade,  or  class  of  persons,  is  competent  evi- 
dence from  which  the  intention,  understanding,  and  agreement  of  parties 
may  be  implied,  in  those  cases  where  there  is  no  express  contract,  and 
where  the  circumstances  themselves  do  not  fix  absolutely  the  legal  rights  of 
the  parties.  In  Smith  and  Stanley  v.  J.  and  I.  Wright,  1  Caines,  43,  upon 
a  question  whether  goods  shipped  on  deck,  and  ejected  in  a  storm,  were 
entitled  to  average  as  against  the  ship-owners,  evidence  of  usage  against 
allowing  it  was  given,  and  the  court  after  showing  that  the  allowance  of 
average  would  be  unreasonable,  decided  against  the  claim  on  the  ground  of 
the  usage  ;  and  it  being  objected  that  the  usage  had  not  been  shown  to 
exist  above  thirty  years,  the  court  considered  that  as  no  objection,  and  said, 
"The  true  test  of  a  commercial  usage  is,  its  having  existed  a  suflicient 
length  of  time  to  have  become  generally  known,  and  to  warrant  a  presump- 
tion that  contracts  are  made  in  Teference  to  it."  S.  P.  Winsor  and  another 
V.  Dillavvay,  4  Metcalf,  221.  An  authority,  as,  to  sell,  insure,  &c.,  may 
be  implied  from  the  custom  of  a  trade  or  profession  :  Kemp  v.  Coughtry, 
1 1  Johnson,  107  ;  Taylor  v.  Wells,  3  Watts,  6.5  ;  Harrington  and  others  v. 
M'Shane,  2  id.  443  ;  Galloway  v.  Hughes  &  al,  1  Bailey,  553  ;  De  Forest 
v.  Fire  Insurance  Co.,  1  Hall,  84  ;  and  see  United  Slates  v.  MacDaniel,  7 


50Q  sjaiTa's   leading  cases. 

Peters,  3.  15.  Proof  of  the  usage  in  such  cases  is  receired,  not  as  evi- 
dence of  what  the  law  is,  but  as  a  fact  or  circumstance  from  which  the 
intention  of  the  parties  is  to  be  made  out.  Ruan  v.  Gai-dneT,  1  Washing- 
ton, C.  C  146.  149.  The  usage  of  an  indi?idaal  irk  his  own  business,  as 
to  the  manner  of  performing  the  business,  or  the  length  and  kind  of  credit 
given,  if  knoivn  to  the  party  dealing  with  him,  is  fevidonce  competent  to 
show  that  the  contract  was  on  those  terms.  Loring  and  ah  v.  r4urney,  5 
Pickering,  IG;  M'Dowell  and  others,  ex'ors  of  Woods  v.  Ingersoll,  5  Ser- 
geant &  Rawle,  101. 

In  like  manner,  where  there  has  been  an  express  contract  about  a  matter 
concerning  which  there  is  an  established  custom^  this  custom  is  reason- 
ably to  be  understood  as  forming  a  part  of  the  contract,  and  niay  be 
referred  to,  to  show  the  intention  of  the  parties  in  those  particulars  which 
are  not  expressed  in  the  contract ;  and  it  is  obvious  that  the  reason  of  the 
rale  which  forbids  the  receipt  of  parol  evidence  of  the  intention  of  the  par- 
ties for  the  purpose  of  adding  to  a  written  contract,  has  no  application  to 
evidence  of  custom.  In  Williams  &  al.  y.  Gilman,  3  Greenleaf,  276,  evi- 
dence of  usage  among  printers,  that  upon  a  contract  to  print  a  certain  num- 
ber of  books,  an  agreement  to  print  no  more  was  implied,  was  held  admissi- 
ble. In  Van  Ness  v.  Pacard,  2  Peters,  138,  which  resembles  the  principal 
case,  it  w-as  held,  that  a  local  usage  for  the  tenant  to  remove,  during  the 
term,  fixtures  erected  by  himself,  gave  that  right  under  an  indented  lease  ; 
and  the  Court,  per  Story,  J.,  said,  "Every  demise  between  landlord  and 
tenant,  in  respect  to.  matters  in  which  the  parties  are  silent,  may  be  fairlj' 
open  to  explanation  by  the  general  usage  and  custom  of  the  country  or  of 
the  district  where  the  land  lies:  every  person  under  such  circumstances  is 
supposed  to  be  cognizant  of  the  custom,  and  to  contract  with  a  tacit  refer- 
ence to  it."  In  Sewall  v.  Gibbs  and  Jenny,  1  Hall,  602,  the  usage  was 
shown  to  be  that  on  sales  of  certain  articles  the  usual  average  tare  allowed 
was  10  per  cent.,  but  in  case  of  fraud  in  the  packing,  the  actual  tare  ;  and 
it  was  held  that  where  notice  was  given  on  a  sale  by  auction  that  the  sale 
w^as  with  the  usual  tare  of  10  per  cent.,  the  purchaser,  upon  fraud  being 
found  was  yet  entitled,  by  reason  of  the  usage,  to  an  allowance  of  the  actual 
tare.  In  Conner  &  Co.  v.  Rohinson,  2  Hill's  South  Carolina,  354,  usage 
w-as  admitte;d  to  show  that  sales  of  cotton  in  Charleston  are  to  be  understood 
as  made  according  to  the  weight  as  ascertained  by  the  wharfinger  on  its 
arrival,  and  not  by  the  actual  weight.  See,  also,  Wilcox  v.  Wood,  9  Wen- 
dell, 349  ;  Consequa  v.  Willings  and  Francis,  1  Peters's  C/.C.  172,  225; 
Thomas  V.  0'Hara,and  Same  v.  Graves  and  Toomer,  1  Mill's  Constitutional, 
(So.  Car.)  303.  308 _;  Bank  of  Uticaw'^  ■  Smithy.  18  Johnson,  230-;  United 
States  y.  Fillebrovvn,  7  Peters,  30.  50.  in  Barber  v.  Brae e,  3  Connecticut 
10.  13,  proof  of  a  usage  to  carry  certain  goods  on  deck, -was  held  admissible  : 
but  on  the  same  point  coming  up  in  The  Paragon,  Ware,  322,  though  the 
abstract  principle  of  admissibility  was  granted,  yet  it  was  held  that  as  it  dero- 
gat(?d  from  the  general  usage  and  law,  full  and  clear  proof  was  to  be  required.; 
and  it  was  decided  in  this  case  that  the  alleged  usage  did- tiut  exist.    • 

In  like  rnanner,;  in  Gomniercial^  instruments  and  .■ffrritten  coutracts,  the 
usage  of  a  particular  trade,  profession,  or  place,  may  he  used  to  aid  in'ascer- 
taining  the  sense  in  which  certain  words  have  been  used,  whose  .significa- 
tion may  be  doubtful;  or,  as  it  is  expressed  in  Murray '\r.Hutchv.:'6Massa- 


WIGGLESWOETHV.     DALLISON.  509 

chusetts,  465.  477,  to  "  give  a  peculiar  effect  and  meaning  to  the  words  of  a 
contract  necessarily  referring  to-the  usage  proved."  See  Brown  v.  Brown 
&  others,  8  Metcalf,  573.  570.  In  Coil  and  Pierpont  v.  The  Connmercial 
Insurance  Co.,  7  Johnson,  385,  it  was  decided  that  evidence  was  admissible 
to  show  that  by  usage  and  generalunderstanding,  the  word  "  roots"  in  New 
York  policies  of  insurance  is  limited  to  mean  such  roots  as  are  perishable  in 
their  own  nature,  and  thereby  excludes  sarsaparilla  ;  and  similar  evidence 
had  been  received  in  Baker  v.  Ludlow,  2  Johnson's  Cases,  289.  In  Astor 
V.  Union  Insurance  Co.,  7  Cowen,  202,  it  was  decided  that  the  usage  of 
traders  mfurs  and  skms  was  admissible  to  show  the  meaning  of  those  vvords 
in  a  policy  of  insurance.  In  Macy  and  another  v.  Whaling  Ins.  Co.,  9 
Metcalf,  354.  362,  usage  was  held  admissible  to  show  that  among  under- 
writers on  whale  ships,  and  their  owners,  the  term  "outfits"  in  a  policy  of 
insurance,  includes  one  quarter  part  of  the  catchings,  that  amount  of  catch- 
ings  replacing  and  standing  in  lieu  of  outfits.  In  Eyre  v.  The  Marine 
Insurance  Company,  5  Watts  &  Sergeant,  116,  it.  was  decided  that  on 
an  insurance  of  a  vessel  at  sea,  for  twelvemonths,  with  liberty  of  the 
olobe,  and  if  at  sea  at  the  end  of  the  time,  the  risk  to  continue  at  the 
same  rate  until  her  arriv^al  at  her  port  of  destination  in  the  United  Slates, 
evidence  was  admissible  that  such  a  voyage  is  known  among  merchants  and 
underwriters  as  a  trading  voyage,  and  that  by  the  usage  of  trade,  the  vessel 
may  sail  to  any  part  of  the  globe  to  which  she  may  get  a  freight  at  any  time 
within  twelve  months,  and  that  she  continues  to  be  Covered  by  the" insurance 
during  such  voyage  after  the  twelve  months  ;  and  what  renders  this  case 
extraordinary,  is  the  fact  that  the  policy  had  previously  received  a  judicial 
construction  to  a  contrary  efl'ect :  S.  C.  6  Wharton,  247.  In  Winlhrop  v. 
Union  Insurance  Co.,  2  Washington  C.  C.  8,  it  waa  held,  that  usage  was 
admissible  to  show  that  in  an  insurance  to  a  foreign  port  and  back,  with  lib- 
erty to  touch  and  trade  for  refreshments  as  usual,  no  part  of  the  cargo  could 
be  sold  at  an  intermediate  port :  but  the  evidence  must  be  of  usage,  not  of 
the  opinions  of  witnesses.  In  Hinton  v.  Locke,  5  Hill,  437,  it  was  decided 
that  on  a  contract  to  pay  the  plaintiff  twelve  shillings  a  day  for  each  man 
employed  by  him  in  the  defendant's  service,  evidence  was  admissible  of  a 
universal  custom  where  the  defendant  lived,  to  consider  ten  hours''  labour  as  a 
day's  work,  and  thereby  to  charge  twelve  and  a  half  hours'  work,  as  the 
labour  of  one  day  and  a  quarter.  In  Avery  and  another  v.  Stewart  and  others, 
2  Connecticut,  69,  the  meaning  of  "  Avholesale  factory  price"  was  allowed  to 
be  illustrated  by  usage,  and  was  referred  to  the  jury  as  a  question  of  fact ; 
see  some  judicious  remarks  in  Roberts  v.  Button  &  Al.,  14  Vermont,  195. 
203.  In  AUegre  v.  The  Insurance  Company,  6  Harris  &  Johnson,  408,  the 
usage  of  the  port  of  shipment  was  decided  to  be  admissible  to  explain  the 
words  in  a  policy,  the  loss  to  be  paid  within  90  days  "after  proof  and  adjust- 
ment thereof,"  and  to  show  what  proof  of  loss  and  value  was  to  be  required  ; 
and  in  Allegro's  Adm'rs  v.  Maryland  Insurance  Co.,  2  Gill  &  Johnson,  137, 
the  same  sort  of  evidence  was  held  admissible  to  show  that  "cargo"  included 
live-stock  as  well  as  dead.  So,  in  Lawrence  v.  McGregor  &  al.,  5  Ham- 
mond's Ohio,  309,  usage  of  the  river  was  held  adm>ssibie  to  explain  matters 
that  were  doubtful  on  the  face  of  the  bill  of  lading.  In  Gordon  &  Walker  v. 
Little,  8  Sergeant  &  Rawle,  533,  the  majority  of  the  court,  Gibson,  J.  dis- 
senting, were  of  opinion  that  evidence  of  usage  was  admissible  to  explain 


51Q  smith's   leading   cases. 

the  meaning  of  "  inevitable  dangers  of  the  river"  in  a  bill  of  lading,  and  also 
to  show  that  river-boatmen  are  not,  in  point  of  fact,  common-carriers,  but 
assume  a  different  responsibility  ;  as  to  the  latter  point  see  also  Dean  v. 
SviToop,  2  Binney,  72.  In  Sleght  v.  Rhinelander  &  a!.,  1  Johnson,  192,  it 
was  held  by  the  Supreme  Court  that  evidence  of  the  commercial  meaning  of 
•'sea-letter"  in  a  policy  was  inadmissible,  because  the  legal  meaning  was 
clear  ;  and  the  judgment  was  reversed  by  the  Court  of  Errors,  2  id.  531,  but, 
apparently,  not  on  the  ground  that  the  evidence  v/as  improperly  excluded. 
And  it  is  a  certain  and  settled  principle,  that  where  the  meaning  is  certain 
and  not  doubtful,  usage  cannot  be  received  to  contradict  or  vary  it ;  Macom- 
ber  V.  Parker,  13  Pickering,  176.  Keener  v.  Bank  of  the  United  States, 
2  Barr,  237.  And  the  disposition  to  abide  by  the  legal  meaning  of  written 
instruments,and  to  prevent  doubtful  usages  from  controlling  fixed  and  express 
agreements,  is  becoming  stronger  and  more  general  in  the  courts.  In  The 
Schooner  Reeside,  2  Sumner,  508,  it  was  decided  that  where  the  bill  of 
lading  undertook  to  deliver  in  good  order,  "  the  danger  of  the  seas  only 
excepted,"  evidence  of  a  usage  in  that  region  that  the  ship-owners  are  mad^ 
by  this  clause  responsible  only  for  damage  arising  from  their  ovi^n  negligence, 
was  contradictory,  and  inadmissible,  and  an  earnest  wish  to  put  an  end  to 
these  local  and  particular  usages  is  expressed  by  Story,  J.  In  Turney  v. 
Wilson,  7  Yerger,  340,  the  same  point  is  decided  ;  see  dicta  in  M'Arthur 
and  Hubbert  v.  Sears,  21  Wendell,  190.  194,  approving  of  these  decisions. 
It  is  true,  that  in  Sampson  and  Lindsay  v.  Gazzam,  6  Porter,  124,  in  a  case 
of  river-navigation,  usage  and  general  understanding  were  decided  to  be 
admissible  to  put  the  same  construction  on  those  words :  but  this  latter  case 
professes  to  be  decided  chiefly  on  the  authority  of  Gordon  and  Walker  v. 
Little,  and  so  far  forth  proceeds  upon  a  mistake;  for  in  the  Pennsylvania 
case,  of  the  three  judges  present,  one,  Gibson,  J.,  thought  that  no  explana- 
tory evidence  should  be  received,  and  another,  Duncan,  J.,  expressly  said 
that  usage  could  not  be  received  to  contradict  the  written  words  so  much  as 
to  render  the  boat-owners  liable  only  for  their  own  negligence,  if  charged  on 
their  special  contract,  though  he  thought  it  admissible  on  the  general  count 
on  the  custom,  to  show  that  by  the  custom  of  the  slate,  the  legal  liability  of 
that  kind  of  carriers  was  less  than  in  England.  In  Aymar  and  Amar  v. 
Astor,  6  Cowen,  266,  a  majority  of  the  court,  viz.  Woodworth  and  Suth- 
erland, Js.,  against  C.  J.  Savage,  decided  that  evidence  of  mercantile  usage 
and  understanding  at  New  Orleans  and  New  York  was  inadmissible  to 
show  that  injury  by  rats  was  included  under  the  exception  of  "  perils  of  the 
sea."  In  R.  &  J.  Rankin  v.  The  American  Insurance  Company  of  New 
York,  1  Hall,  619,  it  was  decided,  on  the  ground  that  usage  cannot  contra- 
dict an  express  agreement  or  fixed  rule  of  law,  that  where,  by  the  policy, 
the  insurers  bound  themselves  to  pay  for  all  damage  arising  from  perils  of 
the  sea,  evidence  of  usage  in  that  port  and  others,  that  the  insurer  is  not  lia- 
ble unless  a  survey  by  particular  officers  be  first  made  on  board,  and  the 
surveyers  find  that  the  goods  were  properly  stowed,  and  that  the  damage 
arose  from  perils  of  the  sea,  is  inadmissible  ;  for  this  is  varying  the  obliga- 
tion, and  introducing  a  condition  precedent  into  the  contract.  In  Lewis  & 
al.  V.  Thatcher  &  al.,  15  Massachusetts,  431,  it  is  said  by  C.  J.  Parker, 
that  where  there  are  words  in  a  policy  which,  by  legal  construction  are  a 
warranty  of  neutraHty,  usage  to  show  that  those  w^ords  mean  only  that  the 


WIGGLES  WORTH     V.     DALLISON.  511 

vessel  is  documented  as  neutral,  would  be  inadmissible  ;  and  in  Homer  v. 
Dorr,  10  id.  26,  a  similar  principle  is  decided.  In  Barksdale  v.  Brown  and 
Tunis,  1  Nolt  &  M'Cord,  517,  usage  of  factors  in  that  quarter  to  allow  pur- 
chasers a  week  or  a  fortnight  on  cash  sales,  was  decided  to  be  incompetent 
to  contradict  the  express  orders  of  the  principal  to  sell  for  cash  ;  but  Cheeves, 
J,  dissented,  holding  the  usage  good.  In  Allen  v.  Dykers  and  Alstyne,  3 
Hill's  New  York,  593,  it  was  decided  that  evidence  of  an  usage,  general  or 
particular,  among  brokers,  though  known  to  the  agent  of  the  party  who  made 
a  special  contract,  was  inadmissible  when  it  contradicted  "  the  fair  and  legal 
import  of  the  written  contract :"  and  in  the  late  case  of  Hinton  v.  Locke,  5 
Hill,  437,  it  was  said  that  usage  is  never  admissible  when  it  contradicts  the 
agreement  of  the  parties. 

In  those  cases,  where,  though  there  has  been  no  full  and  expressed  con- 
tract, the  law  implies  a  particular  contract  or  liability  from  certain  acts  or 
writings,  because  by  general  usage  such  acts  or  writings  are  understood  as 
intended  to  indicate  such  contracts,  or  create  such  liabilities,  a  different  con- 
tract or  liability  will  be  implied,  if  a  different  usage  be  proved  ;  as,  for 
example,  in  case  of  the  contract  of  endorsement.  It  will  be  remembered 
that  parol  evidence  of  the  intention  of  the  parties  is  admissible  to  rebut 
or  control  a  contract  implied  in  this  manner  from  written  matter ;  Sus- 
quehanna B.  &  B.  Co.  V.  Evans,  4  Washington  C.  C.  480,  481  ;  7  Ser- 
geant &  Rawle,  114;  and  evidence  of  usage  is  therefore  quite  unobjec- 
tionable. Accordingly,  it  has  repeatedly  been  decided,  in  relation  to  the 
contract  of  indorsement,  that  an  established  usage  of  particular  banks,  as 
to  the  time  of  demanding  payment  and  giving  notice,  differing  from  the  time 
fixed  by  the  general  law  merchant,  vv^ith  which  banks  the  parties  deal,  is 
evidence  of  intention  and  consent  that  the  contract  of  the  endorser  shall  be 
modified  according  to  this  usage,  and  that,  therefore,  the  endorseris  bound  by 
such  demand  and  notice  as  the  usage  prescribes.  Jones  v.  Fales,  4  Massa- 
chusetts, 245  ;  Lincoln  and  Kennebeck  Bank  v.  Page,  9  id.  155  ;  Blan- 
chard  v.  Hilliard,  11  id.  85  ;  Pierce  v.  Butler,  14  id.  303  ;  The  Bank  of 
Columbia  v.  Fiizhugh,  1  Harris  &  Gill.  239  ;  Renner  v.  Bank  of  Columbia, 
9  Wheaton,  582  ;  Mills  v.  Bank  of  the  United  States,  1 1  id.  431  ;  Bank  of 
Washington  v.  Triplett  and  Neale,  1  Peters,  25,  decided  by  C.  J.  Marshall  ; 
Kilgore  v.  Buckley,  14  Connecticut,  363.  388  ;  and  the  same  principle  has 
been  applied  to  the  manner  of  making  the  demand  and  giving  notice  ; 
Whitwell  &  al.  v.  Johnson,  17  Massachusetts,  499  ;  City  Bank  v.  Cutter  & 
al.  3  Pickering,  414  ;  Chicopee  Bank  v.  Eager,  9  Metcalf,  583.  In  Hal- 
sey  V.  Brown  and  others,  3  Day,  346,  in  an  action  against  the  owners  of  a 
vessel  for  the  recovery  of  money  undertaken  to  be  carried  in  the  ship,  for 
which  the  master  had  given  a  bill  of  lading,  it  was  admitted  that  by  the 
general  commercial  law,  the  owners  were  liable  upon  the  contracts  of  the 
master,  but  was  held  that  evidence  of  a  custom  in  Connecticut  and  New 
York  that  contracts  to  carry  money  are  private  and  personal  to  the  master, 
was  admissible.  In  Allen  v.  iMerchant's  Bank  of  New  York,  22  Wendell, 
215,  it  was  held  by  a  majority  of  the  Court  of  Errors,  that  a  bank  receiving 
a  note  for  collection,  which  requires  the  intervention  of  agent-banks  in 
another  state,  is  liable  for  their  negligence,  but  that  general  custom  and 
usage  at  the  place  (which  must  be  proved  not  by  the  opinions  of  merchants 
bat  by  their  evidence  as  to  facts,)  might  modify  and  less.en  this  liability 


512^  .      smith's   leading   cases. 

but  it  is  obvious  from  the  opinions  delivered  in4}iis  case,  that  the  usage  was. 
deemed  admissible,  not  to  alter  the  legal  liability  flowing  from  a  contract  for 
the  collection  of  the  note,  but  to  show  that  in  point  of  fact  the  contract  of 
the  bank  was  not  Jbr  the  collection  of  the  note,  but  (as  was  -held  in  The 
Mechanics'  Bank  v.  Earp,  4  Rawle,  385,)  for  the  transmission  of  the  note, 
or  some  such  modified  undertaking;  not  to  put  a  different  meaning  upon  a^ 
contract,  but  to  show  that  a  different  contract  had  been  made  from  that 
which  the  law  avou Id  ordinarily  imply  from  the  general  understanding  and 
practice  of  business  :  see  also  Van  Santvoord  v.  St.  John,  6  Hill,  158.-^ 
These,  it  will  be  observed,  are  cases  of  contracts  ;  in  which  the  actual  in  ten*  " 
tion  of  the  parties  always  controls;  and  the  general  presumption  which  the 
law  had  made  as  to  the  intention   from  general  usage,  is  rebutted  by  that 
evidence  of  actual  intention  which  the  specific-  u^age  affords  :  no  principle 
of  law  is  oppugned  by  the  usage.  And  it  is  well-setiled  that  usage  is  never 
admissible  to  oppose  or  alter  a  general  principle  or  rule  of  law,  and  upon  a 
fixed  state  of  facts,  to  make  the  legal  rights  or  liabilities  of  the  parties  other 
than   they  are  by  the   common   law.     Frith  v.  Barker,  2  Johnson,  327; 
Brown  v.  Jackson,  2  Washington  C.  C  24  ;  Rapp  y.  .Palmer,  3  Watts, 
178.     In  Middleton  v.  Heyward,  2  Nott  &  M'Cord,  9,  such  .effisct  it  was 
thought  might  be  given  to  an  usage,  but  apon  a  new  trial  of  the  same  case, 
3  M'Cord,  121,  the  usage  could  not  be  made  out.   In  Snowden  and  another 
v.  Warder,  3  Rawle,  101,  it  was  held  that  evidence  was  admissible  of  an 
usage  in  Philadelphia,  that  the  vendor,  upon  a  sale  of  cotton,  shall  answer 
for  latent  difects,  though  there  be  neither  fraud  nor  warxanty-;  but  C.J. 
Gibson  dissented  ;  and  the  case  is  directly  contrary  to-Thompson  v.  Ashton, 
14  Johnspn,  316  ;  and  is  probably  not  law.  And  a'usage  will  not  be  recog-' 
nized  in  a  court  of  law  unless  it  be  reasonable,  and  adapted  not  only  to 
increase  trade,  but  to  promote  just  dealing  between  the  parties  ;  Macy  and 
another  v.  Whaling  Ins.  Co.  9  Metcalf,  354.  36a.  In  Bryant  &  al.  v.  Com- 
monwealth Insurance  Co.,  6  Pickering,  131.  145,  it  was  -decided  that   aji- 
usage  for  a  master  of  a  stranded  vessel  .to  sell  without  necessity,. is-. void'; 
and  in  Prescott  v.  Hubell,  1  M'Cord,  94,  evidence  of  a  customthat  the  note 
of  a  third  person,  given  by  a  sea  captain,  to  be  in  satisfaction  when  paid,  is 
an  absolute  discharge,  was  decided  to  be  inadmissible.      That  usage  cannot 
stand  against  a  statute,  see  McDowell  and  others,  ex'ors  o.f. Woods  v.  Inger- 
soU,  5   Sergeant  &  Rawle,  101  ;  as,  in  case  of  usury  ;  Dunham  v.  Dey, 
Same  v.  Gould,  13  Johnson,  40,  16  id.  367.     For  other  cases  where  usage 
has  been  rejected  as   unreasonable,  or  contrary  to  the  common  law,  see 
Newbold  v.  Wright  and  Shelton,  4  Rawle,  195  ;  Jordan  and  Whitesides  v. 
Meredith,  3  Yeates,  318  ;  Mussey  v.  Eagle  Bank,  9  Metcalf,  306.  314; 
Henry,  Ex'or  v.  Risk  &  al.,  1  Dallas,  265;   Stoever  v.  Lessee  of  Whitman, 
6  Binney,  416,  where  C.  J.  Tilghman  says,  "Miserable  will  be  our  con- 
dition, if  property  is  to  depend,  not  on  the  contract  of  the  parties,  expounded 
by  established  principles  of  law,  but  on  what  is  called  the  custom  of  particu- 
lar places,  so  that  we  may  have  different  law  in  every  town  and  village  of 
the  commonwealth."     But  in  Gibson  v.  Culver  and  Brown,  17  Wendell, 
305,  proof  of  usage  establishing,  in  case  of  common   carriers,  a  different 
mode  of  delivery  from  that  required  by  the  common  law,  was  decided  to  be 
admissible  ;  and  see  dictum  to  the  same  effi^ct  in  Cope  v.  Cordova,  1  Rawle, 
203.  211.   In  Bolton  v.  Colder  and  Wilson,  1  Watts,  360,  where  a  custom, 


WIGGLES  WORTH     V.     D  A  L  L  I  S  0  N.  513 

that,  where  one  carriage  passes  another  going  the  same  way,  the  leading 
one  must  inchne  to  the  right,  was  rejected,  the  court,  per  C.  J.  Gibson, 
said,  "  Nothing  should  he  mo?e  pjertinaciously  resisted,  than  these  attempts 
to  transfer  the  function&  of  the  judge  to  the  witness's  stand,  by  evidence  of. 
customs,  in  derogation  of  the  general  law,  that  would  involve  the  responsi- 
bilities of  the  parties  in  rules,  whose  existence,  perhaps,  they  had  no  reason 
to  suspect  before  they  came  to  be  applied  to  their  rights.  If  the  existence 
of  a  law  be  so  obscure,  as  to  be  known  to  the  constitutional  expounders  of 
it,  only  through  the  evidence  of  witnesses,  it  is  no  extravagant  assumption, 
to  take  for  granted,  that  the  party  to  be  affected  was  ignorant  at  the  time 
when  the  knowledge  of  it  would  have  been  most  rnaterial  to  him  ;  and  to 
try  a  man's  actions  by  a  rule  with  which  he  had  not  an  opportunity  to 
become  acquainted  beforehand,  is  the  very  worst  species  of  tyranny."  See 
the  remark  of  Bronson,  J.,  in  Cole  v.  Goodwin,  19  Wendell,  252.  256. 
':  No  usage  or  custom,"  says  the  same  judge  in  Hinton  v.  Locke,  5  Hill, 
437,  "can  be  set  up  for  the  purpose  of  controlling  th^  rules  of  law."  In 
Strong  V.  Bliss,  6  Metcalf,  393,  evidence  of  a  custorii  among  merchants, 
going  or  sending  to  purchase  goods,  to  pay  for  the  article  purchased,  with- 
out taking  a  dehvery  or  seeing  it,  and  that  it  is  considered  a  purchase  when 
paid  for,  was  decided  to  be  inadmissible  ;  as  it  was  not  of  the. usage  of  any 
particular  place,  or  trade,  or  class  of  dealers,  or  course  of  deaiitJg,  but  of  a 
general  usag-e  to  control  the  rules  of  law.  .  '■';■ 

The  usage  of  a  class  or  trade  is  good  evidence  .to,  .ground' dn- argument  of 
neghgence  in  one  belonging  to  it;  Sampson  and'  anotlier  y.  Hand  and 
another,  6  Wharton,  31 K  324  ;  or  to  repel  fraud  or  negligence  ;  Maxwell 
vv  Eason,  1  Stewart  &  Porter,  514;  Cook  v.  Champlain.  Transportation- 
Company,  1  Deriio,  92.  102;  Bradford  v.  Drew,  5  Metcalf,  188  ;  and  this 
is  probably  the  true  ground  of  Barber  v.  Brace,  3  Connecticut,  9.         .    ■  ,  - 

.The  custom,  recognized  iri  Wigglesworth  v.  Datlison,  has   long   been 
established  as  part  of.  .the  common  law  of  Pennsylvania  I'—ra  tenant  for  a 
term  certain  is,  unless  there  be  an  exception  in'  the  lease,  entitled  to  the. 
way-going  crop,  tliat  is,  the  grain,  hay  and  straw,  sown  the  season  before 
that  in  which  the  leas«  expires,  and  coming  to  maturity  after  the  expiration 
ofthe  Jease.     Iddings  v.  Nagle,  2  Watts  .&  Sergeant,  .22  ;  Craig  v.  Dale,  1  ' 
id.  509  ; 'Forsyth  v.  Price, -8  Watts,' 282  ;  Deriii  v.  Bossier,  1  Penrose  and 
Walts,  224  ;  dictum  in  Biggs  'and .others  v.  Brown,  2  Sergeant  &  Rawle', ' 
14.  16  ;  Stultzv.;. Dickey,  5  Bihiiey,  285  ;  Diffedofler  and  oljiers  \^..  Jones,  ■ 
id.  289,  and  2  id.  487.  In  Van  Dorens  v;-  Everitt;  2. Southard,  46Q,  the-same 
custom  is  said  by  C.  J.  Kirkpatrick  tobe  well  established  in  New  Jersey. 
And  in  Delaware  it  exists  as  to  Wheat,  but  not  oats.    Templeman  v.  Biddle, 
1  Harrington,  522.     ■       "  •  ...:.'•.■'" 

As  to  the  admissibility  of  usages  in  general,  t-he  .later  cases^howtbat. the 
dislike  to  them,  which  seems  always  to  have  characterized  the  ablest  judges 
in  this  country,  is  now  becoming  general.  "lam  among  those  judges," 
says  StoRv,  J,,  in  Donnell.et  al;  v.  Columbia  Insurance  Co.,  2  Summer, 
367.  377,  "  who  think  usages  among  merchants  should  be  very  sparingly 
adopted,  as  rules  of  coyrt,  by  court§  of  justice,  as  they  are  often  founded  in. 
mere  mistake,  and  still  more  .often  in  the  want  of  enlarged  and  comprehen- 
sive views  of  the  full  bearing  of  principles." 

H.  B.  W. 

Vol.  I 33 


514  smith's     LEADING     CASES. 


L*310]  *MOSS  r.  GALLIMORE   AND   ANOTHER." 

MICHAELMAS— 20  GEO.  3, 
[reported  dougl.  279.] 

A  mortgagee,  after  giving  notice  of  the  mortgage  to  a  tenant  in  possession,  under  a  lease 
prior  to  the  mortgage,  is  entitled  to  the  rent  in  arrear  at  the  time  of  the  notice,  as  well 
as  to  wliat  accrues  afterwards,  and  he  may  distrain  for  it  after  such  notice. 

In  a  notice  for  Uie  sale  of  a  distress,  it  need  not  be  mentioned  when  the  rent  fell  due.t 

In  an  action  of  trespass,  which  was  tried  before  Naies,  Justice,  at  the  last 
assizes  for  Staffordshire,  on  not  guihy  pleaded,  a  verdict  was  found  for  the 
plaintiff,  subject  to  the  opinion  of  the  court,  on  a  case  reserved.  The  case 
stated  as  follows:  One  Harrison  being  seised  in  fee,  on  the  1st  of  January, 
1772,  demised  certain  premises  to  the  plaintiff,  for  twenty  years,  at  the  rent 
of  40/.,  payable  yearly  on  the  12th  of  May  ;  and  in  xMay,  1772,  he  mortga- 
ged the  same  premises,  in  fee,  to  the  defendant,  Mrs.  Gallimore.  Moss  con- 
tinued in  possession  froni  the  date  of  the  lease,  and  paid  his  rent  regularly 
to  the  mortgagor  all  but  28/,,  which  was  due  on  and  before  the  month  of 
November,  1778,  when  the  mortgagor  became  a  bankrupt,  being  at  the  time 
indebted  to  the  mortgagee  in  more  than  that  sum  for  interest  on  the  mortgage. 
On  the  3rd  of  January,  1779,  one  Harwar  went  to  the  plaintiff,  on  behalf  of 
Gallimore,  showed  him  the  mortgage  deed,  and  demanded  from  him  the 
rent  then  remaining  unpaid.  This  was  the  first  demand  that  Gallimore 
made  of  the  rent.  The  plaintiff  told  Harwar  that  the  assignees  of  Harrison 
had  demanded  it  before,  viz.,  on  the  31st  of  December;  but,  when  Harwar 
■  said  that  Gallimore  would  distrain  for  it  if  it  was  not  paid,  *he  said, 
L  -1  he  had  some  cattle  to  sell,  and  hoped  she  would  not  distrain  till  they 
were  sold,  when  he  would  pay  it.  The  plaintiff  not  having  paid  according 
to  this  undertaking,  the  other  defendant,  by  order  of  Gallimore,  entered,  and 
distrained  for  the  rent,  and  thereupon  gave  a  written  notice  of  such  distress 
to  the  plaintiff,  in  the  following  words :  ^'  Take  notice,  that  I  have  this  day 
seized  and  distrained,  &c.,  by  virtue  of  an  authority,  &c.,  for  the  sum  of  28/., 
being  rent  and  arrears  of  rent,  due  to  the  said  Esther  Gallimore,  at  Michael- 
mas last  past,  for,  &c.,  and  unless  you  pay  the  said  rent,  &c."  He  accord- 
ingly sold  cattle  and  goods  to  the  amount  of  22/.  2s.  The  question  stated 
for  the  opinion  of  the  court  was,  whether  under  all  the  circumstances,  the 
distress  could  be  justified  ? 

Wood,  for  the  plaintiff.     Bower,  for  the  defendants. 

Wood. — The  plaintiff's  case  rests  upon  two  grounds  :  1st,  The  defendant, 
Gallimore,  not  being,  at  the  time  when  the  rent  distrained  for  became  due, 
in  the  actual  seisin  of  the  premises,  nor  in  the  receipt  of  the  rents  and  pro- 
fits, she  had  no  right  to  distrain.     2.  The  notice  was  irregular,  being  for 

t  A  man  is  not  bound  by  his  notice  of  distress,  Crowther  v.  Rambottom,  7  T.  R.  654,  per 
Lord  Kenyon. 


MOSSV.     GALLIMORE.  515 

rent  due  at  Michaelmas,  AA^hereas  this  rent  was  only  clue,  and  payable  in 

May I.   Before  the  statute  of  4  Anne,  c.   16,(«)  a  conveyance    by  the 

the  reversioner  was- void  without  the  attornment  of  the  tenant,(6)  which  was 
necessary  to  supply  the  place  of  livery  of  seisin.  Since  that  statute  I  admit 
that  attornment  is  no  longer  necessary  to  give  effect  to  the  deed;  but  it 
does  not  follow  from  thence,  that  a  grantee  has  now  a  right  to  distrain, 
before  he  turns  his  title  into  actual  possession.  The  mortgagor  (according 
to  a  late  caseVc)  is  tenant  at  will  to  the  mortgagee,  and  has  a  right  to  the 
rents  and  profits  due  before  his  will  is  determined.  Nothing,  in  this  case, 
can  amount  to  a  determination  of  the  will,  before  the  demand  of  the  rent  oil 
behalf  of  the  mortgagee,  and  the  whole  of  that  for  which  the  distress  was 
made  became  due  before  the  demand.  If  the  mortgagor  himself  had  been 
in  possession,  he  could  not  have  been  turned  out  by  force;  the  mortgagee 
must  have  brought  an  ejectment.  The  assignees  had  called  upon  the  plain- 
tiff for  the  rent,  as  well  as  Gallimore,  and  how  could  he  take  upon  himself 
to  decide  between  them  ?  The  mortgagee  should  have  brought  an  eject- 
ment, when  any  objection  there  might  have  been  to  the  title  could  have  been 
discussed.  It  does  not  appear,  from  the  case,  that  *the  interest  in  p;jioi9-i 
arrear  had  ever  been  demanded  of  the  mortgagor,  and  there  is  a  tacit  •-  -^ 
agreement  that  the  mortgagor  shall  continue  in  possession  and  receive  the 
rents  till  default  is  made  in  paying  the  interest.  2.  The  notice  is  irregular, 
and,  on  that  account,  the  distress  cannot  be  justified.  By  the  common  law, 
the  goods  could  not  be  sold.  The  power  to  sell  was  introduced  by  the 
statute  of  William  and  Mary  ;(fZy  but  it  is  thereby  required  that  notice  shall 
be  given  thereof,  '<  with  the  cause  of  taking,"  &c.  These  requisites  are  in 
the  nature  of  conditions  precedent,  and,  if  not  complied  with,  the  proceed- 
ings are  illegal.  It  is  true,  this  irreguliirity,  since  the  statute  of  11  Geo. 
2,(e)  does  not  make  the  defendants  trespassers  ab  initio,  but  the  action  of 
trespass  is  still  left  by  that  statute,  for  special  damages  incurred  in  conse- 
quence of  the  irregularity. I 

Lord  Mansfield  observed,  that  the  plaintiff  was  precluded  by  the  case 
from  going  for  special  damages  arising  from  any  supposed  irregularity  in 
the  sale,  no  such  special  damages  being  found,  and  the  question  stated  being 
only,  whether  the  distress  was  justifiable  ;  and  Buller,  Justice,  said,  that  it 
was  not  necessary,  by  the  statute  of  William  and  Mary,  to  set  forth,  in  the 
notice,  at  what  tinie  the  rent  became  due. 

Bower. — If  the  law  of  attornment  remained  still  the  same  as  it  was  at 
common  law,  the  conversation  stated  to  have  taken  place  between  the 
.plaintiff  and  Harwar  would  amount  to  an  attornment ;  and,  when  there  has 
been  an  attornment,  its  operation  is  not  restrained  to  the  time  when  it  was 
made  :  it  relates  back  to  the  time  of  the  conveyance,  and  makes  part  of  the 
same  title-:  like  a  feoffment  and  livery,  or  a  fine  or  recovery  and  the  deed 
declaring  the  uses  ;  Long  v.  Hemming.(/)  Now,  however,  any  doubts 
there  might  have  been  on  this  subject  are  entirely  removed  by  the  statute 
of  Q,ueen  Anne,  the  words'  of  Vv^hich  are  very  explicit,  viz.  :(»•)  "that  all 
grants  or  conveyarices  of  any  manors,  rents,  reversions,  or  remainders,  shall  . 

(«)  Sect.  9.  (fe)  Co.  Liu.  309,  a.  b. 

(c)  Keech  v.  Hall,  M.  19  Geo.  3,  ante,  p.  293,  {d)  2  W.  &  M.  ses.  1.  c.  5,]s.  2. 

(f)  Cap.  19,  s.  19.  t  See  on  this  point,  ante,  p.  6G. 

(/)1  Anders.  25 G.    Vide  S.  C.  Cro.  El.  209.  (^)  4  Anne,  cap.  1 6, s.  9. 


516  smith's     LEADING     CASES. 

be  as  good  and  efloctual  to  all  intents  and  purposes,  Avilhout  any  attornment 
of  the  tenants,  as  if  their  attornment  had  been  had  and  made."  The  pro- 
viso in  the  same  statute, («)  which  says,  that  the  tenant  shall  not  be  prejudiced 
by  the  payment  of  any  rent  to  the  grantor  before  he  shall  have  received 
notice  of  the  grant,  shows  that  it  was  meant  that  all  the  rent  which  had  not 
been  paid  at  the  time  of  the  notice  should  be  pa3'able  to  the  grantee.  The 
^^.„-,  mortgagor  is  called  a  tenant  at  will  to  *the  mortgagee.  That  may 
L  -^  be  true  in  some  respects,  but  it  is  more  correct  to  consider  him  as 
acting  for  the  mortgagee  in  the  receipt  of  the  rents  as  a  trustee,  subject  to 
have  his  authority  for  that  purpose  put  an  end  to,  atvvhatever  time  the 
mortgagee  pleases.  It  is  said,  the  proper  method  for  the  mortgagee  to  have 
followed  would  have  been  to  have  brought  an  ejectment,  but  it  is  only  a 
very  late  practice  to  allow  a  mortgagee  to  get  into  the  possession  of  the 
rents,  by  an  ejectment  against  a  tenant  under  a  lease  prior  to  the  mort- 
gage.(i*)  The  interest,  it  is  said,  is  not  stated  to  have  been  demanded  ;  but 
the  case  states,  that,  at  the  time  of  the  notice  and  distress,  more  than  the 
amount  of  the  rent  in  the  arrear  was  due.  It  is  said,  the  tenant  could  not 
decide  between  the  mortgagor  (or,  which  is  the  same  thing,  his  assignees) 
and  the  mortgagee  ;  but  that  is  no  excuse.  He  would  have  had  the  same 
difficulty  in  the  case  of  an  absolute  sale  ;  a  mortgage  in  fee  being,  at  law, 
a  complete  sale,  and  only  differing  from  it  in  respect  of  the  equity  of  redemp- 
tion, which  is  a  mere  equitable  interest. 

The  court  told  him  it  was  unnecessary  for  him  to  say  any  thing  on  the 
other  point. 

Lord  Mansfield. — -I  think  this  case,  in  its  consequences,  very  material. 
It  is  the  case  of  lands  let  for  years  and  afterwards  mortgaged,  and  consider-, 
able  doubts,  in  such  cases,  have  arisen  in  respect  to  the  mortgagee  when 
the  tenant  colludes  with  the  mortgagor;  for,  the  lease  protecting  the  pos- 
session of  such  a  tenent,  he  cannot  be  turned  out  by  the  mortgagee.  Of 
late  years  the  courts  have  gone  so  far  as  to  permit  the  mortgagee  to  pro- 
ceed by  ejectment,  if  he  has  given  notice  to  the  tenant  that  he  does  not 
intend  to  disturb  his  possession,  but  only  requires  the  rent  to  be  paid  to 
him,  and  not  the  morlgagor.X  This,  however,  is  entangled  with  difficulties.. 
The  question  here  is,  whether  the  mortgagee  was  or  was  not  entitled  to 
the  rent  in  arrear.  Before  the  statute  of  Glueen  Anne  attornment  was 
necessary,  on  the  principle  of  notice  to  the  tenant ;  but,  when  it  took  place,- 
it  certainly  had  relation  back  to  the  grant,  and,  like  other  relative  acts,  they 
were  to  be  taken  together.  Thus,  livery  of  seisin,  though  made  afterwards, 
relates  to  the  time  of  the  feoffment.  Since  the  statute,  the  conveyance  is 
complete  without  attornment ;  but  there  is  a  provision,  that  the  tenant  shall 
r*^i41  ^^^  ^^  prejudiced  for  any  act  done  by  him  us  holding  under  the 
L  J  *  grantor,  till  he  has  had  notice  of  the  deed.  Therefore,  the  pay- 
ment of  rent  before  such  notice  is  good.  With  this  protection,  he  is  to  be 
considered,  by  force  of  the  statute,  as  having  attorned  at  the  time  of  the 
execution  of  the  grant;  and,  here,  the  tenant  has  suffered  no  injury.  No 
rent  has  been  demanded  which  was  paid  before  he  knew  of  the  mortgage. 
He  had  the  rent  in  question  still  in  his  hands,  and  was  bound  to  pay  it 

(a)  Sec.  10.  {h)  White  v.  Hawkins,  M.  19  G.  3,  ante,  p,  295. 

t  'But  this  is  at  present  never  permitted.    See  ante,  p.  295. 


MO  S  S    V.     G  A  LLl  M  OR  E.  517 

according  to  the  legal  title.  But  having  notice  from  the  assignees,  and  also 
from  the  mortgagee,  he  dares  to  prefer  the  former,  or  keeps  both  parties  at 
arm's  length.  In  the  case  of  executions  it  is  uniformly  held,  that  if  you 
act  after  notice,  you  do  it  at  your  peril.  He  did  not  offer  to  pay  one  of  the 
parlies  on  receiving  an  indemnity.  As  between  the  assignees  and  the 
mortgagee,  let  us  see  who  is  entitled  to  the  rent.  The  assignees  stand 
exactly  in  the  place  of  the  bankrupt.  Now,  a  mortgagor  is  not  properly 
tenant  at  will  to  the  mortgagee,  for  he.  is  not  to  pay  him  rent.  He  is  so  only 
quodam  modo.  Nothing  is  more  apt  to  confound  than  a  simile.  When 
the  court,  or  counsel,  call  a  mortgagor  a.  tenant  at  will,  it  is  barely  a  com- 
parison.- He  is  like  a  tenant  at  will.  The  mortgagor  receives  the  rent  by 
a  tacit  agreement  with  the  mortgagee,  but  the  mortgagee  may  put  an  end 
to  this  agreement  when  he  pleases.  He  has  the  legal  title  to  the  rent,  and 
-the  tenant  in  the  present  case  cannot  be  damnified,  for  the  mortgagor  can 
never  oblige  him  to  pay  over  again  the  rent  which  has  been  levied  by  this 
distress.  I  therefore  think  the  distress  well  justified  ;  and. I  consider  this 
.••remedy  as  a  very  proper  additional  advantage  to  mortgag-ees,  to  prevent 
collusion  between  the  tenant  and  the  mortgagor. 

.^shiirst,  Justice. — The  statute  of  Q,ueen  Anne  has  rendered  attornment 

■unnecessary  in  all  cases,  and  the  only  question  here  arises  upon  the  circum- 

. 'Stance  of  the  notice  of  the  mortgagee  not  liaving  been  given  till  after  the 

rent  distrained,  for  became  due.      Where   the.  mortgagor  is  himself  the 

occupier  of  the  estate,  he  may  be  considered  as  tenant  at  will ;  but  he 

cannot  be. so  considered  if  there  is  an  under-tenant;  for  there  can  be  no 

such  thing  as  an  under-tenant  to  a  tenant  at  will.      The  demise  itself  would 

amount  to  a  determination  of  the  will.     There  being  in  this  case  a  tenant 

.'in  possession,  the  mortgagor  is,  therefore,  only  a  receiver  of  the  rent  for  the 

mortgagee,  who    may,  at    *any  lime,   countermand   the    implied     ,;,„.„-. 

authority,  by  giving  notice  not  to  pay  the  rent  to  him  any  longer.      L         J 

Buller,  Justice. — There  is  in  this  case  a  plea  of  the  general  issue,  which 
is  given  by  statute,{a)  but  if  the  justification  appeared  upon  the  record  in 
a  special  plea,  the  distress  must  be  held  to  be  legal.  Before  the  act  of 
Q,Ueen  Anne,  in  a  special  justification,  attornment  must  have  been  pleaded  ; 
but  since  that  statutfe  it  is  never  averred  in  a  declaration  in  covenant,  nor 
pleaded  in  ah  avowry.  In  the  case  of  Keech  v.  Hall,  referred  to  by  Mr. 
Wood,  the  court  did  not  consider  the  mortgagor. as  tenant  at  will  to  all  pur- 
poses. If  my  memory  do  not  fail  me,  my  lord  distinguished  mortgagors 
from  tenants  at  will  in  a  very  material  circumstance,  namely,  that  a  mort- 
gagor would  not  be  entitled  to  emblements.  Expressions  used  in  particular 
cases  are  to  be  understood  loith  relation  to  the  subject-matter  then  before 
the  court. 

The  postea  to  be  delivered  to  the  defendants. 


Moss  v.  Gai.limore  is  the  leading  general  importance,  it  would  be  perhaps 
case  upon  a  paint  which  seems  so  clear  matter  of  some  surprise  that  any  ca^e 
in  principle  that,  were  it  not  for  its  very     should  have  been  requisite  to  establish 

(«)  11  .Geo.  2,  c.  19,  s.  21. 


518 


SMITHS    LEADING     CASES. 


it.  The  mortgagor  having  conveyed  his 
estate  to  the  mortgagee,  tlie  tenants  of 
the  former  become  of  course  the  tenants 
of  the  latter,  the  necessity  for  their 
attornment  being  done  away  with  by 
tlie  statute  of  Anne,  which,  though  it 
provides  that  they  sliall  not  be  preju- 
diced by  the  abolition  of  attornment, 
and  consequently  renders  valid  any  pay- 
ments they  may  have  made  to  the  mort' 
gagor  without  notice  of  the  mortgage, 
nevertheless  places  the  mortgagee  in 
the  situation  of  the  mortgagor,  imme- 
diately upon  the  execution  of  the  mort- 
gage-deed, subject  only  to  that  proviso 
in  favour  of  the  tenants;  and  enables 
him,  by  giving  notice  to  them  of  the 
conveyance,  to  place  himself  to  every 
intent  in  the  same  situation  towards 
them  as  the  mortgagor  previously  occu- 
pied. Such  being  the  situation  of  the 
tenant  with  respect  to  the  mortgagee,  it 
would  of  course  be  unfair  that  he  should 
not  be  proportionably  exonerated  from 
his  liabilities  to  the  mortgagor;  there- 
fore, where  a  lessor,  after  the  execution 
of  the  lease,  mortgaged  the  premises,  it 
was  held  that  he  could  not  afterwards 
maintain  ejectment  for  a  forfeiture.  Doe 
dcm.  Marriott  v.  Edwards,  5  B.  &  Adol. 
1065. 

Such  being  the  situation  of  a  tenant 
who  comes  in  under  the  mortgagor  be- 
fore the  mortgage  ;  let  us  now  examine 
a  subject  which  seerns  to  involve  more 
difficulty,  namely,  that  of  a  tenant  who 
has  entered  under  the  mortgagor  subse- 
quently to  the  mortgage ;  for  •  it  was 
once  alleged,  that  though  a  tenant  who 
had  entered  previous  to  the  mortgage 
became  the  tenant  of  the  mortgagee 
after  the  mortgage,  and  might,  if  any 
proceedings  were  afterwards  instituted 
against  him  by  the  mortgagor,  show 
that,  although  that  person  was  once  his 
landlord,  he  had  now  conveyed  away 
his  estate  in  the  premises;  (according 
to  the  ordinary  rule  of  law,  that  a  tenant, 
though  he  cannot  dispute  the  title  of 
the  landlord  under  whom  he  entered, 
r*oip-|  i"^y  confess  and  avoid  it  by 
L  -I  =fshowing  that  it  has  now  deter- 
mined ;  see  Doe  dem.  Marriott  v.  Ed- 
wards above  cited  ;)  still  that  a  tenant 
who  had  entered  since  the  mortgage 
was  difterently  situated,  for  that  he  was 
estopped  from  disputing-  the  title  of  the 
mortgagor,  and  could  not  confess  and 
avoid  it,  inasmuch  as  it  had  never  really 
existed  during  the  period  of  his  posses- 
sion, and  this  idea  derived  a  good  deal 


of  countenance  from  the  decision  of  the 
Court  of  Common  Pleas,  in  Alchorne  v. 
Gomme,  2  Bingh.  54.  However,  the 
subject  was  afterwards  fully  discussed 
in  Pope  V.  Biggs,  9  B.  &  C.  245.  In 
that  case.  Gar  bet,  being  the  owner  of 
six  houses,  mortgaged  them  to  various 
persons  ;  and,  afier  the  mortgage,  let  to 
several  persons.  Biggs,  the  defendant, 
was  tenant  of  one  of  the  houses,  and  re- 
ceived the  rents  of  the  others  as  agent 
for  Garbet,  who  became  bankrupt ;  and 
thereupon  the  mortgagees  gave  notice 
to  the  tenants  of  the  houses  that  the  in- 
terest was  in  arrear,  and  required  them 
to  pay  the  amount  of  the  interest,  in  part 
of  rent,  and  similar  sums  out  of  future 
rents,  until  further  notice.  At  this  time 
there  was  rent  arrear,  and  other  rents 
subsequently  became  due  ;  these  were 
received  by  the  defendant,  and  applied 
by  him  to  the  interest  due  on  the  mort- 
gage, with  the  exception  of  a  sum  which 
would  not  be  sufficient  to  meet  the  next 
ha  If  year's  interest.  To  recover  these 
moneys,  an  action  was  brought  against 
the  defendant  Biggs,  by  the  assignees 
of  Garbet ;  but  the  court  held  that  they 
were  not  entitled  to  recover.  "  I  hjive 
no  doubt,"  said  Bayley,  J.,  "  that  in 
point  of  law,  a  tenant  who  comes  into 
possession  under  a  demise,  from  a  mort- 
gagor, after  a  mortgage  executed  by 
him,  may  consider  the  mortgagor  his 
landlord,  so  longas  the  mortgagee  allows 
the  mortgagor  to  continue  in  possession 
and  receive  the  rents,  and  that  payment  • 
of  the  rents  by  the  tenant  to  the  mort- 
gagor, without  any  notice  of  the  mort- 
gage, is  a  valid  payment.  BjiI  the  mort- 
gagee, by  giving  notice  of  the  mort- 
gage to  the  tenant,  may  thereby  make 
him  his  tenant,  and  entitle  himself  to 
receive  the  rents."  "The  mortgagor," 
said  Parke,  J.,  "maybe  considered  as 
acting  in  the  nature  of  a  bailiff  or  agent 
for  the  mortgagee.  His  receipt  of  rent 
will,  therefore,  be  good  until  the  mort- 
gagee interferes,  and  he  may  recover  on 
the  contracts  he  has  himself  entered 
into  in  his  own  name  with  the  tenants. 
But  where  the  mortgagee  determiiie-s 
the  implied  authority  by  a  notice  to  the 
tenants  to  pay  their  rents  to  him,  the 
mortgagor  can  no  longer  receive  or  re- 
cover any  unpaid  rent,  whether  already 
due  or  no."  And  in  Waddilove  v.  Bar- 
nett,  4  Dowl.  .'348,  the  law  on  this  point 
was  considered  so  completely  settled, 
that,  as  remarked  by  Tindai,  C.  J.,  it 
was  not  even  attempted  to  argue  that 


MOSS     V.     GALLIMORE. 


519 


the  tenant  was  estopped  from  showing 
that  the  mortg-agor's  right  had  been  de- 
leriniiied  by  a  notice. 

Tlic  view  taken  by  Parke,  J.,  in  Pope 
V.   Biggs,  -in   which   the   mortgagor  is 
treateTas  the  mortgagee's  agent,  if  he 
thinli  fit  to  adopt  him,  as  such,  seemed 
to  be  in  accordance  with  a  decision  of 
the  Court  of  Common  Pleas  in  a  case 
not  arising,  it  is  true,  between  mortga- 
gor and  mortgagee,  but  between  trustee 
and  cestui  que  trust.     Vallance  v.  Sav- 
age, 7  Bingh.  595,  was  an  action  on  the 
case  by  John  Vallance  for  an  injury  to 
his  reversion  by  obstructing  a  highway 
leading  to  a  dwelling-house  whicli  the 
declaration  alleged  to  be  in  the  occupa- 
tion of  Sarah  Pell,  as  tenant  to  the  plain- 
tiff'.    The  evidence  was,  that  John  Val- 
lance, the  plaintiff,  was  a  trustee;  that 
one  James  Vallance  was  his  cestui  que 
trust,  and  had  let  the  premises  in  ques- 
tion to  Sarah  Pell,  from  whom  he  re- 
ceived the  rent.     It  was  objected  that 
Sarah  Pell  was  not  tenant  to  the  plain- 
tiff, but  to  James  Vallance  ;  and,  conse- 
quently, that  the  plaintiff  had  not  the 
reversionary  interest  set  forth    in  the 
declaration.  But  the  court  held  that  the 
plaintiff  had  a  right  to  adopt,  and  had 
adopted,  Sarah  Pell  as  his  tenant.     "  In 
the  present  case,"  said   Tindal,  C.  J., 
"  inasmuch  as  the  plaintiff  has  brought 
an  action,  and    has   alleged   that  Pell 
was  a  tenant  to  him,  tiiat  is  a  sufficient 
adoption  of  her  as  tenant,  and  there  is 
no  failure  in  the  proof  of  the  allegation 
on  record.     Even  in  the  case  of  mort- 
gagor and  mortgagee,  whose  interests 
are  adverse,  acts  of  the  mortgagor  as- 
sented to  by  the  mortgagee  are  consi- 
dered as  acts  of  the  mortgagee.  By  the 
p.!,.,,-,-,  stronger  reason,  *then,  the  act 
-I-'        -I  of  the  cestui  que    trust,  whose 
interest  is  under  the  trustee,  must,  if 
known,  and  not  repudiated,  be  consider- 
ed the  act  of  the  trustee."     See  Meg- 
ginson  v.  Harper,  4  Tyrwh.  100.     Tiie 
doctrine  thus  promulgated  in  Pope  v. 
Biggs  was,  however,  shaken  by  Parting- 
ton V.  Woodcock,  5  N.  &  M.  672,  and  6 
Ad.  &  El.  090,  where  Patteson,  J.,  ad- 
verting tothe  expressions  of  Biyley,  J., 
above  cited,  says — "  I  never  could  un- 
derstand how  the  notice  of  the  mortga- 
gee could  make  the  lessee  tenant  to  him 
at  the  reserved  rent."     Very  strojig  ex- 
pressions to   tlie  same  effect  were  also 
used  in  Rogers  v.  Humphreys,  4  Ad.  &. 
E.  313.  And  at  length  in  Evans  v.  Elliot, 
9  Ad.  &  EU.  342,  it  was  expressly,  de- 


cided by  the  Court  of  Queen's   Bench, 
that  the  mortgagee  cannot  by  the  mere 
fact  of  giving  the  mortgagee's  tenant 
a  notice,  cause  him  to  hold  of  himself 
the  mortgagee,  and  that  even  a  subse- 
quent attornment  by  .the   tenant  tothe 
mortgagee  will  not  have  the  effect  of 
setting  up  his  title  as  landlord  by  rela- 
tion.    The  result  of  this  decision  and 
of  that  of  the  Court  of  C.  P.  in  Brown 
v.  Storey,  1   Scott,  N.  C.  91 ;  1  M.  & 
G.  117,  seems  to  be  that,  in  order  to 
create  a  tenancy  between  the  mortga- 
gee and  the  tenant  let  into  possession 
by  the  mortgagor,  there  must  be  some 
evidence   whence    it   may  be    inferred 
that  such  relation    has  been  raised  by 
mutual  agreement,  and   that    in    such 
case  the  terms  of  the  tenancy  are  to  be 
ascertained    (as    in   an    ordinary  case) 
from  the  same  evidence  which   proves 
its  existence.     But  that  it  does  not  lie 
in  the   power   of  the   mortgagee  by  a 
mere  notice  to  cause  the  tenant  in  pos- 
session to  hold  under  him  on  the  same 
terms  on  which  he  held  under  the  mort-  . 
gagor— or  indeed  upon  any  terms  at  all 
without  his    own   consent.      And  that 
where  the  tenant  does  consent  to  hold 
under  the  mortgagee,  a  new  tenancy  is 
created,  not  a  continuation  of  the  old 
one  between  him  and   the  mortgagor. 
In  Brown  v.  Storey,  indeed,  the  Court 
of  Common  Pleas  expressed  an  opinion 
that,  if  the   mortgagor's   tenant,   after 
receiving  notice  from  the  mortgagee  to 
pay  rent  to  him,  continued  in  possession, 
it  might  fairly  be  inferred  that  he  as- 
sented  to    continue   as    tenant   to  the 
mortgagee  upon  the  old  terms. 

As  the  mortgagor  ceases  to  be  entitled 
to  the  rents  upon  the  mortgagee's  giv- 
ing the  tenant  notice,  it  tbllows  that  the 
mortgagor  cannot  afterwards  maintain 
any  "action  for  use  and  occupation 
against  him,  either  for  rent  which  ac- 
crued due  after  the  notice,  or  for  rent 
which  accrued  due  before  the  notice  but 
was  unpaid  at  the  time  when  the  notice 
was  given.  But  there  is  a  difference 
between  the  modes  in  which  the  tenant 
must  plead  in  the  former  and  in  the 
latter  case.  In  the  former  case  he 
should  plead  non  assumpsit,  and  will  be  • 
allowed  to  give  the  mortgage  and  notice 
in  evidence,  for  "  when  the  mortgagee 
gave  notice  that  the  future  rent  was  to 
be  paid  to  him,  it  follows  that  the  defend- 
ant ceased  to  occupy  by  the  permission 
of  the  mortgagor,  but  by  the  permission 
of  the  mortgagee :"  and,  of  course,  such 


520 


SMITH    S     LEADING     CASES. 


a  .d&fence  'amounts,  to.  a"  .denial  of  the 
contract  alleged  in  the  declaration, 
which,  avers  tlie  defendant  to  have  used 
and  occupied  the  land  by  tlie  permission 
of  tlie  plaintiff,  the  i.nortgagor.  .But  in 
the  latter  case,  viz.,  where  the  rent 
became  due  hrfore  notice>  but  was  \xn- . 
paid  at  the  time  of  notice,  the  tertaht 
must  plead  his-'  defence  specially,  for 
"  the  mortn-agor  had.  a  right  of  action 
against  the  defendant  up  to  the  time 
when  the  notice  was  ^iven,  and,  before 
the  mortgagee  required  the  rent  to  be 
paid  to  him;"  so  that  the  tenant,  by 
setting  up  this  defence,  confesses  that 

..the  right  of  action,  stated  ih  the  decla- 
ration, once  existed,  hut  avoids  it  by 
inatter  ex  post. facto,  viz.,.by  the  subse- 
qu.ent  notice  from  the  mortgagee.  Wad- 

.tleldve  V.  Barnett,  4  Dowj.  P.  C.  3-i7;" 
2:Bma-.  N.  C.  538.  .         ■ 

.  I  will  conclude  this  note  -by  taking 
notice  of  a  case  which  sometimes  oc- 
curs; viz.,  that  of  a  lease  purporting  to 
be  by  mortgagor  and  mortgagee  jointly  : 
such  an  instrument  operates  as  a  lease 
by  the  mortgagee,  with  a  confirmation 
by  the  mortgagor,  until  the  estate  of  the 


former  has  been  determined  by  paying 
off  the  mortgag'e-Tnohey,  and  then  it 
becomes  the  lease  of  the  mortgagor,  and 
the  confirmation  of  the  mortgagee;  and 
it  follows  that,  if  ejectment  be  brought 
against  the  tenant  during  the  mortga- 
gee's estate,  the  demise  must  be  laid  in 
the  name  of  the  mortgagee;  if  after- 
wards, in  that  of  the  mortgagor  ;  but  a 
joint  demise  laid  in  the  declaration 
would  be  improper.  X)oe  dem.  Uarney 
V.  Adams,  2  Tyrwh.  289.  See  Doe  dem. 
Barker  v.  Goldsmith,  ibid.  710.  When 
a  mortgagor  and  mortgagee  join  in  u 
lease,  and  the  covenants  to  pay  rent,  and 
repair  are  with  tlie  mortgagor  add  his 
assigns  only,  the  mortgagee  cannot  «ue 
on  those  covenants,  because  collateral 
to  iiis  interest  in  the  laud,  Wcbt)  v. 
Russell,  3  T.  R.  393,  though  tiie  'mort- 
gagor might  sue  on  them  as  covenants 
in  gross.  Stokes  v.  Russell,  3  T.  R.. 
67S  ;  1  H.  Bl.  562.  Wiiere  tlie  mort- 
gagor and  mortgagee  join  in  a  lease, 
containing  an  express  covenant  by  the 
mortgagor  for  quiet  enjoyment,  no  cov- 
enant from  both  can  be  implied.  Smith 
V.  Pilkington,  1  Tyrwh.  313. 


When  a  loase  has  been  made  prior  to  a  mortgage,  the  latter  amounts 
under  the  common  law,  to  an  immediate  grant  of  the  reversion.  Of  course 
no  doubt  can  be  entertained,  that  upon  the  attornment  of  the  tenant,  or  with- 
out such  attornment,  where  the  conveyance  is  under  the  statute  of  uses,  or 
the  statute  of  Anne,  dispensing  with  attornment  is  in  force,  the  mortgagee 
will  be  entitled  to  all  the  remedies  for  the  recovery  of  the  rent,  which  belong 
to  other  assignees  of  reversions.  This  doctrine,  ^Yhich  is  perfectly  well 
settled  on  principle,  was  expressly  held  in  a  recent  decision  made;  by- the 
Supreme  Court  of  Massachusetts,  and  is  said  by  KeNt  to  be  generally 
recognized  in  the  United  States.  Burden  v.  Thayer,  3  Metcalf,  79  ;  4  Kent, 
Com.  1G5.  And  where  right  of  the  mortgagee  is  restrained  by  statute,  until 
the  forfeiture  of  the  condition,  he  may  exercise  it  immediately  afterwards, 
and  proceed  to  compel  immediate  payment  of  the  rent,  from  the- tenant. 
Babcock  v.  Kennedy,  1  Vermont,  457.  There  are,  however,  two  cases, 
which  throw  a  doubt  over  its  existence  in  Pennsylvania.  lnx)ne  of  thege:. 
it  was  decided,  that  the  tenant  in  fee  of  lands  could  not  set  up  a  mortgage 
£)f  a  ground-rent  issuing  out  of  them,  as  a  defence  to  an  action  of  covenant, 
"brought  for  the  rent.  Werdner  v.  Foster,  2.  Penn.  26.  It  was  held  by  the 
court,  that  whether  the  interest  mortgaged,^  was  a  corporeal  or  incorporeal 
hereditament,  the  mortgagee  took  no  actual  estate  under  it,  before  a. demand 
upon  the  tenant  of  payment  or  of  possession,  and  consequently,  that  it 
could  not  be  set  up  as  an  assignment  of  the  plaintifif's  interest,  w:hich  would 
disqualify  him  for  maintaining  his  action.     Although  this  language  seemed 


MO.gs    y;    ©ALL  I  MO  RE.  521 

to  admit  the  r%ht  of  tlie'rhor^ag^ee^'to'denfand  payment. of  the  reht,  if  he 
had  ihougiit  fi-t,it  is  not  very  easily  reconcilable  with  the  existence  of  that 
right,  which  could  only  grow  out  of  a  previous  conveyance  of  the  estate  to 
him  by  the  mortgagor.  As  the  interest  mortgaged  lay  in  grant,  and  might 
consequently  be  passed  by , a  mere  deed,  independent  of  the  operation  of 
th'e  itatule, of  ufi^es,  the. court  was  perhaps  at  liberty  to  consider  the  convey- 
ance as  taking  efTect  at  common  law,  and  not  under  the  statute,  in  order  to 
attain  tl^e  object. of  meeting  the  intent  of  the  parties,  in  the  particular 
iustauce.  Uiiderth.is  view  of  the  case,  as  the  statute  of  Anne  is  said  not  to 
be-  in  force  in  Pennsylvania  imtil  attornment  by  the  tenant,  the  services 
■Would  have  remained., in' the  .alienor  ;. Lilt.  sect.  533  ;  Coke  Litt.  310,  b, 
311,  a;  and  coHsequently,  the  grant  would  have  formed  no  defence  to  an 
action  for  their  recovery.-.  -Unless;  however,  it  were  held  at  the  option  of 
the  party  to  whom  a  reve.irsiort  !&  mortgaged,  to  consider  the  conveyance  at 
common  law,  or  under  th-e  statute,  and  that  the  former  effect  shall  be  given 
it  until  he  does  some  act  which;  cannot  be  suppyorted  on  that  ground  ;  this 
construction  of  the  law,  would  be  attende<l  with  the  consequence  of  depriv- 
ing the  mortgagee  of  the  constructive  possession  of  the  premises,  and  of 
his  remedies,  to  obtain  the  rent,^  independently  of  the  consent  and  attornr- 
ment  of  the  tenant. 

In  the  previous  case  of  Myers  v.  White,  1  Rawle,  355,  will  be  found 
an  opinion  delivered  by  Rogers,  J.,  which  appears  to  question  the  right 
of  the  mortgagee  to  obtain  payment  of  the  rents  from  the  tenant  of  the 
mortgagor.  The  case  did  not,  however,  present  the  point  in  a  shape  for 
direct  decision. 

The  right  of  the  mortgagee  to  proceed  for  the  recovery  of  rent,  against 
tenants  holding  under  leases  prior  to  the  mortgage,  is  confined,  like  that  of 
other  assignees  of  reversions,  to  the  rent  accruing  subsequently  to  the 
assignment.  All  that  has  accrued  before,  is  a  mere  chose  in  action^  and 
consequently,  incapable  of  being  passed,  by  an  assignment,  whether  condi- 
tional or  otherwise.     Burden  v..  Thayer,  3  Metcalf,  79, 

More  difficulty  att-ends  upon  ah  inquiry  into  the  rights  of  the  mortgagee, 
as  against  tenants  holding  under  leases  iriade  by  the  mortgagor,  subse- 
quently to  th»  mortgage.  It  is.  perfectly  evident,  in-,  such  a  case,  as  there 
is  neither  tenure  nor  privity  of  contractor  estate  betvv'een  the  parties,  that 
the:mortgagee  cannot  distrain  nor  bring  any  action,  for  the  recovery  of  the 
rent.-  Mayo  v.  Shattuck,  14  Pick.  533.  ■  M.Kircher  v.  Huwley,  1-6  Johns. 
2D0.'  Watts  v.  Coffin,  11  Johns.  495.  Moreover,  should  the  tenant  pay 
the  r.ent  to  the  noortgagee/even  in  order  to  avoid  an  ejectment,  he  cannot 
in  general,  set  Up  the  mortgage  merely  as  such,  to  resist'  a  subsequent 
action  for  tlie  sariie  rent  by  the  mortgag&r.  'BQviders  v.- Van-' Sickle,  :"3 
Halsted,  313.'  ■-  ■  ;    •    ■.       '  '/      '-■.">.    .    • 

As' the,  mortgagee,  while  unable  to  bring  an  action  directly  for  the- reco- 
very of  the  rent,  may  proceed  indirectly  to  the  same  object  by  turning  the 
tenant  outof  possession  under  ah  ejectment,  and  malfing  him  liable  in  tres- 
pass for  the  mesne -profits,- the' position  of  the  latter,  when  holding  under  a 
lease,  subsequeutiu  date. to  the  mortgage,  would  seem- at  first  sight  suffi- 
ciently difficult ;  5ince^rt;he  reht  be  not  paid  to  the  mortgagee,  an  ouster 
may  follow  by  him,  and.  if  it  be,,  such  payment,  as  has=  been' already,  stated, 
cannot  be  pleaded  as  a  payment  by  the  mortgagor,  for  the  sanae  rent.  "  Nor 


522  SMITIl'sLEADINGCASES.  ' 

can  the  defective  title  of  the  latter,  at  the   lime  of  lease  made,  ordinarily 
afford  a  belter  defence  to  such  action. 

Although  there  is  no  general  principle  of  law  \Yhich  prevents  a  tenant 
from  disputing  his  landlord's  title,  where  the  action  relates  to  rent,  Davies 
V.  Tyler,  18  Johns.  491,  yet  where  the  demise  is  by  indenture,  the  deed  is 
an  estoppel,  and  where.it  is  not,  the  action  is  commonly  brought  in  use  and 
occupation,  where  a  traverse  of  title,  as  beinc  an  immaterial  issue  is  not  per- 
mitted. Cobb  V.  Arnold,  8  Melcalf,  398.  Notwithstanding  this,  it  would 
seem  that  there  is  another  doctrine  of  law,  on  which  a  tenant  holding  by  a 
demise  made  subsequently  to  the  mortgage,  may  safely. relyj  in  making 
actual  payments  of  rent  to  the  mortgagee,  and  as  a  protection  against  a  sub- 
seq.uent  action  by  the  mortgagor,  even  where  he  cannot  set  up  the  want  of 
title  in  the  latter,  at  the  time  of  the  demise,  as  a  defence.  No  estoppel  or 
form  of  action,  can  deprive  the  tenant  of  his  right  to  show  an  eviction  by 
title  paramount,  and  such  eviction  must  always  suspend  subsequently 
accruing  rent.  Now  it  is  perfectly  well  established,  that  to  obtain  the  legal 
right  given  by  an  eviction,  it  is  never  necessary  to  wait  for  an  ejection  by 
form  of  law.  Whether  in  a  declaration  or  plea,  it  is  sufficient  to  show  in 
addition  to  the  averment  of  superior  title,  which  must  always  be  made  and 
proved,  that  possession  was  given  to  the  party  possessing  such  title.  It 
would  therefore  seem,  that  as  the  mortgagee  in  the  case  in  question  has  a 
title  paramount,  and  an  unquestionable  right  to  recover  under  it,  possession 
of  the  preoiises  by  ejectment,  the  tenant  may  put  him  into  constractive 
possession,  by  consenting  to  hold  of  him,  and  paying  him  rent,  and  after- 
wards take  advantage  of  the  implied  eviction,  as  a  defence  to  any  demand 
for  rent  on  the  part  of  the  mortgagor.  This  view  of  the  law  was,  in  the 
recent  case  of  Loomis  v.  Bedel,  11  New  Hamp.  84,  carried  to  the  extent  of 
holding  that  the  averment  of  an  eviction  in  a  declaration  on  a  warranty, 
would  he  sufficiently  supported  by  showing  that  the  tenant  had  purchased 
in  a  title  paramount  in  order  to  avoid  a  suit  upon  it,  with  which  he  was 
threatened  by  the  holder.  In  the  cases  of  Jones  v.  Clarke,. 20, Johns.  121, 
and  Magill  v.  Hinsdale,  6  Conn.  469,  it  was  decided,  apparently  on  this 
ground,  that  a  tenant,  holding  under  a  lease  made  subsequent  to  the  mort- 
gage, might,  after  payment  of  rent  to  the  mortgagee,  successfully  defend 
himself  against  an  action  brought  by  the  mortgagor.  As  there  can  be  no 
doubt  that  the  mortgagee  may  recover  against  the  tenant  in  ejectment,  and 
put  him  again  in  possession,  at  the  former  rent,  it  would  seem  that  these 
decisions,  which  allowed  the  same  end  to  be  attained  with  less  expense, 
were  for  the  benefit  of  all  parties.  Notwithstanding  the  soundness  of  this 
doctrine,  in  the  case  of  Souders  v.  Sickle,  .T  Halsted,  313,  the  Supreme 
Court  of  New  Jersey,  decided  the  same  point  the  other  way,  and  held,  that 
in  an  action  for  use  and  occupation,  proof  by  the  tenant  that  he  had  agreed 
to  hold  under  the  mortgagee,  and  had  paid  the  rent  to  him  as  a  consequence 
of  the  tenure,  was  no  defence  to  the  action,  although  the  mortgage  wasr  prior 
to  the  lease.  It  would  seem  that  the  defence,  although  bad,  if  regarded  as 
equivalent  to  a  plea  of  nil  habuit  in  tenementis,  should  have  been  received, 
as. amounting  to  a  legal  eviction.  The  law  on  this  head  has  since  been 
placed  beyond  doubt,  by  repeated  and  authoritative  decisions  of  the  Supreme 
Court  of  Massachusetts  ;  and  it  has  there  been  determined,  that  a  demand 
of  the  rent  by  a  mortgagee,  claiming  under  a  mortgage  prior  to  the  lease, 


MOSS     V.     GALLIMORE.  523 

and  supported'by  an  entry  on  his  part,  or  an  intention  to  enter,  will  justify  a 
payment  to  him  by  the  tenant,  and  that  evidence  of  these  facts  will  support 
a  plea  of  eviction  to  any  action  subsequently  brought  by  the  landlord.  Smith 
V.  Shepard,  15  Pick.  147,  and  may  be  relied  on  as  a  defence  under  non- 
assumpsit,  if  the  suit  be  for  use  and  occupation.  Welch  v.  Adams,  1  Met-  . 
calf,  494. 

Since  the  revised  statutes  have  taken  away  in  New  York,  the  mortgagee's 
right  to  obtain  possession  of  the  premises,  it  would  seem  that  he  is  no  longer 
entitled  to  receive  the  rent  from  the  tenants,  and  that  a  surrender  of  pos- 
session and  payment  to  him,  could  no  longer  be  pleaded  as  an  eviction,  to  a 
subsequent  action  for  rent  by  the  mortgagor.  Jackson  v.  Myers,  1 1  Wendell, 
537. 

There  are  moreov-et,  other  grounds  of  defence  to  which  a  tenant  holding 
by  a  lease  subsequent  to  the  mortgage,  who  has  paid  rent  to  the  mortgagee, 
under  an  express  or  implied  threat  of  eviction,"  may  resort  for  protection 
against  a  suit  for  the  same  rent  by  the  mortgagor.  In  the  first  place,  where 
such  suit  was  brought  in  use  and  occupation,  it  was  held  in  Waddilove  v.. 
Barnett,  2  Bing.  N.  C.  538,  that  as  to  rent  falling  due,  after  a  notice  from 
the  mortgagee  to  make  payment  to  him,  evidence  of  the  mortgage  and  of 
the  notice  constituted  a  good  defence,  since  it  showed,  that  as  the  mortgagee 
had  a  power  of  eviction,  which  he  was  prepared  to  exercise,  the  use  and 
occupation  had  been  by  his  permission,  and  not  by  that  of  the  plaintiff^. 
But  it  was  also  held,  that  with  regard  to  arrears  due  before  the  notice,  as 
the  prior  occupation  by  virtue  of  which  they  had  accrued,  still  appeared  to 
have  been  by  permission  of  the  mortgagor,  and  the  evidence,  when  regarded 
merely  in  this  point  of  view,  did  not  amount  to  a  defehcej  and  consequently, 
agreeably  to  the  new  rules,  could  not  be  received  under  the  plea  of  non- 
assumpsit.  The  prior  decision  of  Pope  v.  Garbet,  9  Barn.  &  Cress.  245, 
had  however,  determined,  that  evidence  of  a  mortgage  prior  to  the  lease, 
and  of  a  subsequent  notice  from  the  mortgagee,  were  a  valid  defence  to  an 
action  by  the  mortgagor,  not  merely  for  after-accruing  rent,  but  for  the 
■  arrears  due  at  the  time  of  the  notice  given.  This  was  equally  under  a  plea 
of  non  assumpsit,  but  before  the  new  rules,  so  that  matter  in  satisfaction  or 
discharge  of  the  contract,  was  good  evidence  under  the  plea.  If  this  deci- 
sion be  valid,  it  can  only  be  supported  as  proceeding  upon  a  modification  of 
the  principle,  that  where  by  the  apprehension  or  force  of  legal  process,  a 
party  is  compelled  to  pay  money  for  which  another  is  primarily  liable,  he 
has  a  claim  in  law  against  the  other,  of  which  advantage  may  be  taken 
either  by  way  of  action  or  set  off".  Thus  in  Sapsford  v.  Fletcher,  4  Term, 
513,  a  payment  by  an  under  lessee,  made  to  avoid  the  distress  with  which 
he  was  threatened  by  the  superior  landlord,  was  held  to  amount  to  a  pay- 
ment to  his  immediate  lessor,  and  to  be  a  defence  to  an  action  by  him  for 
the  same  rent.  In  the  subsequent  case  of  Taylor  v.  Zamira,  6  Taunt.  524, 
the  same  principle  was  applied,  where  the  party  against  whom  the  set-off 
was  claimed,  though  not  liable  personally  for  the  money  paid,  was  yet  liable 
in  his  estate,  which  he  had  demised  to  the  tenant,  by  whom,  to  avoid  a 
distress  the  payment  had  been  made.  Now  it  would  appear,  that  even  if 
the  tenant  is  not  liable  personally  to  the  mortgagee,  for  the  rent  of  the  pre- 
mises, as  such,  the  latter  has  notwithstanding,  a  claim  which  amounts 
substantially  to  the  same  thing,  since  he  may  first  obtain  possession  of  the 


524  smith's    leading   cases. 

land  iti  ejectment,  and  recover  the  value  of  the  rents  and  issues  previouely 
arising  from  it,  by  an  action  of  trespass,  for  the  mesne  profits.  If  therefore, 
the  tenant,  in  order  to  avoid  the  eviction,  and  liability  in  damages,  to  which 
he  is  thus  exposed,  make  payment  of  the  rent  to  the  mortgagee,  it  would 
seem  that  he  raaj^  under  the  doctrine  of  Taylor  v.  Zamira,  take  advantage 
of 'it.  as  a  defence,  to  any  subsequent  proceeding  by  the  mortgagor. 

..  'Gf  course  if  the  action  be  in  any  other  form  than  that  of  use  and  occupa^ 
ifgn,  the  -same  principle  will  apply,  though  in  a  different  way.     Thus  "to 

•  CGtvenant  or  debt  for  rent,  on  a  demise  by  indenture,  or  to  an  avowry  for  rent 
arrear,  a  payment  to  the  mortgagee,  whether  of  rent  due  before  or  after 
ndtico  from  him,  may  be  pleaded  specially,  under  the  authority  of  Taylor 
V.  Zamira,  as  being  in  substance,  a  legally  enforced  payment,  made  on 
account- of -.the  mortgagor,  and  therefore,  protecting  the  tenant  pro  tanto, 
against- any  demand  from  him.  Moreover,  if  the  payment  to  the  mort- 
gagee>  has  beeaaf  rent  due  subsequent  to  the  notice,  on  the  same  ground 
that  iriasS-umpsit  it  Avould  he  a  defence,  as  showing  that  the  premises  had 
hot  heen  .ocGUpifidby  permission  of  the  mortgagor,  it  may  be  pleaded  as  an 
eviction:' by: title,  paramount,  in  debt,  covenant,  or  an  avowry  ;  at  all  events, 
where  \he  payment  has  been  under  such  circumstances,  as  to  put  the 
mortgagee  into  constructive  possession  of  the  premises,  by  creating  a  new 
tenure  from  him.  .     ^' . 

It  is  necessary. however,  to  point  out,  that  in  deciding  the  cases  of  Pope 
V-.:  Garbet,  and  Wa^diloye  v.  Barnett,  the  language  of  the  court  went  much 
loofar,  since  it  implied,  that  the  mere  fact  of  -notice  by  the  mortgagee,  and 
assent  by  the  tenant  could,  operate,  where  the  mortgage  was  prior  to  the 
lease,  to  vest  in  the  mortgagee  a  right  as  reversioner  of  the  term  demised, 
to  proceed  generally  for  the  recovery  of  the  rent  accruing  thereon.  It  is, 
on  the  contrary,  perfectly  evident,  that  if  the  payment  of  rent,  as  such,  by 
the  tenant,  upon  a  notice  to  that  .eifect  from  the  mortgagee,  claiming  under 
the  title  paramounf  cidate.d  by  the  mortgage,  can  create  a  tenure  between 
the  parties  to  the  payrnent,  still  it  is  a  tenure  perfectly  new  in  origin,  and 
which  has  nothing  to  do  with  the^  previous  demise  by  the  mortgagor, 
although,  as  in  other  cases  of  constructive  tenancies  from  year  to  year, 
such  payment,  if  coinciding  in  times. and  amount  with  the  reservation  in  the 
old  lease,  might  perhaps,  render  tlie  latter  evidence  to  prove  the  terms  of 
the  new.  .    •  '  • .  ^'  ...  •. 

In  accordance  with  this- doctrine,,  whete  .it  appeared  that  the  defendants, 
holding  under  a  lease  subsequent  to  a  mortgage,  had  paid  a  quarter's  rent 
to  the  lessor,  after  notice  from  a  rnoMgagee,  the  latter  was  held  not  entitled 
to-  distrain  for  the  amount  thus  paid,  although  the  lessee  had  made  all  the 

'  subsequent  payments  to  him,  and  had  frequently  afterwards  recognised  him 
as  his  landlord.  The  court  seemed  to  b.e  of  opinion,  that  these  payments 
from  the  time  they  were  made,  created  a.  new  tenure  between  the  parties, 
but  decided  Avhat  would  seem  hardly  to  have-  required  decision,  that  they 
could  not  transt"er  the  tenancy  e.visting  under  the  former  lease,  nor  give  the 
mortgagee  any  rights  as  landlord,  of  a  date  prior  to  the  time  at  which  they 
were  made...  Denman,  C.  J.,  had  notwithstanding,  at  the  trial,  ruled  the 
point  the  other  way,  under  the  influence,  as  he  declared,  of  the  language 
employed  in  the-cases  cited  above.  .Evans  v.  Elliott,  9  Ad.  &  El.  342. 
In  taking  leave  of  the  subject  it  may  be  observed,  that  it  possesses  more 


WHITCOMB     V.     WHITING.  525 

importance  than  it  would  otherwise  have,  from  the  fact,  that  is  involves  the 
question  of  the  rights  of  tenants  in  general,  to  protect  thennselves  against 
their  lessor,  when  they  have  been  compelled  by  the  danger  of  an  eviction, 
under  title  paramount,  to  make  payment  to  third  parties,  and  proves  that 
even  where  they  cannot  directly  plead  that  the  title  was  defective  at  the 
time  of  demise  made,  they  may  attain  the  same  object  in  another  way.  In 
order  however,  to  obtain  a  correct  view  of  the  whole  question,  it  is  neces- 
sary accurately  to  distinguish  between  the  cases  in  which  the  demise  is 
made  before  and  after,  the  mortgage  ;  and  to  remember,  that  in  the  former 
case,  a  previously  existing  reversion  is  transferred  to  the  mortgagee,  and  that 
in  the  latter,  he  merely  requires  a  right  of  eviction,  which,  whether  exer- 
cised actually  or  by  implication,  will  have  the  effect  of  creating  a  new 
tenure,  between  himself  and  the  tenant,  and  of  protecting  the  latter  in 
making  him  payments.  6f  rent.  This  protection  under  the  principle  of 
Taybr  v.  Zamira,  and  llie  autkority  of  Pope  v.  Garbet,  extends  perhaps 
even  to  rnaking  payment- of  the  arrears  due  on  the  old  tenure,  at  the  time  of 
entering  upon  the  new,. since  the  tenant  would  otherwise  be  made  liable  by 
the  law,  and  independently  of  any  act  of  his  own,  to  make  payment  of  the 
profits  of  the  same  lands  to  two  different  persons — as  rent,  to  his  landlord, 
and  as  damages,  in  an  action  for; "t:he  mesne  profits,  by.  the  mortgagee.  But 
whether  the  demise  be  made  befor&.or  after  the  mortgage,  there  is  no  reason 
whatever  for  holding  that  the  morlgagor  in  possession,  is  the  agent  of  the 
mortgagee  for  the  purpose  of  making  leases,  or  that  the  latter  has  any  right 
to  take  advantage  of  his  acts,- in  that,  or.  any  other  capacity. 

■'■■."'■;■"■"'  -  -.;-  H. 


^WK-li^COMB  t;..  WHITING.  [*3i8] 


"-'  /EASTER,21GE.O.  3. 

[re^pokted  dottgl.  652.] 

The    acknowledgment  of  one  out  of  several  drawers  of  a  joint  and  -several  promissory 
note"  takes  it  out  of  the  Statute  of  Lim.itations  as  against  the  others,  and  may  be  given 
.    iu  eyidenbe  in  a  separate -actibn  agiaihst  any  x>f  the  others. 

Dkcla^ation,  in  the  cpmman  fornj,  on  a  promissory  note  executed  by  the 
defendant.  Pleas  ;  the  general  issue,  and  non  assumpsit  infra  sex  annos  ; 
Replicatian  ;-,assumpsit  infra  sex  annos.  The  cause  was  tried  before  Hotham, 
Baron,  at  the  last  assizes  for  Hampshire.  The  plaintiff  produced  a  joint 
and  several  note  executed  by  the  defendant  and  three  others;  and. having 
proved  payment,  by  one  of'  the.  others,  of  interest  on  the  note,  and  part  of 
the  principal,  within  six  jrears,  and  the  judge  thinking  that  was  sufficient 
to  take  the  case  out  of  the  stafute,  as  against  the  defendant,  a  verdict  was 
found  for  ihe  plaintiff. 


526  smith's   leading   cases. 

On  Finday,  the  4ih  of  May,  a  rule  was  granted  to  show  cause  why  there 
should  not  be  a  new  trial,  on  the  motion  of  Laivrcncc,  who  cited  Bland  v. 
Haslerig,  C.  B.  H.  1  &  2  W.  &  M.  2  Ventr.  150;  and  this  day,  \i\  sup- 
port of  the  application,  he  contended,  that  the  plaintiff,  by  suing  the  defen- 
dant separately,  had  treated  this  note  exactly,  as  if  it  has  been  signed  only 
by  the  defendant ;  .and,  therefo're^whatever  might  have  been  the  case  in  a 
joint  action,  in  this  case  the  acts  of  the  other  parties  were  clearly  not  evi- 
dence against  him.  The  acknowledgment  of  a  party,  himself  does  not 
amount  to  a  new  promise,  but  is  only  evidence  of  a  promise.  This  was 
determined  in  the  case  of  Heylin  v.  Hastings,  B.  R.  H.  10  Will.  3,  reported 
in  I  Salkeld,  29,  and  12  Modern,  223  ;  and  in  *Hemings  v.  llobin- 
C*^  J  son,C.  B.M.6  Geo.  2,  Barnes,  4to  ed;  436,  it  was  decided  that 
'the  confession  of  nobody  but  the  defendant  himself  is  evidence  against 
him.  That  last  case  was  an  action  by  an  indorsee  of  a  note,  against' the 
drawer^  and  the  plaintiff" proved  the  ackirowledgmcnt  of  a  mesne  indorser 
that  the  indorsement  on.  the  back  of  the  note,  was  in  his  handwriting; 
but  the  court  was  of  opinion  that  this  was  not  evidence  against  the 
drawer,  but  that  the  indorsement  must  be  proved.  It  would  certainly 
open  a  door  to  fraud  and  collusion,  if  this  sort  of  evidence  were-  in  any 
-case  to  be  admitted.  A  plaintiff  might  get  a  joint  drawer  to  make  an 
acknowledgment,  or  to  pay  part,  in  order  to  recover  the  whole,  although  it 
had  been  already  paid. 

Lord  Mansfield. — The  question  here,  is  only,  whether  the  action  is  bar- 
red by  the  Statute  of  Limitations.  When  cases  of  fraud  appear  they  will  be. 
determined  on  their  own  circumstances.  Payment  by  one  is  payment  for 
ali,  the  one  acting,  virtually,,  as  agent  for  the  rest  ;  and,  in  the  same  man- 
ner, an  admission  by  one  is  an  admission  by  atl ;  and  the  law  raises  the 
promise  to  pay,  when  the  debt  is  admitted  to  be  due. 

JViUes,  Justice. — The  defendant  has  had  the  advantage  of  the  partial 
payment,  and,  therefore,  must  be  bound  by  jt.  '-  .    ■ 

Ashurst  and  ^i<//er,  Justices,  of  the  same  opinion. 

The  rule  discharged. (a) 


This  case  is  confirmed  by  Perham  v.  Hirst,    10   B.  &   C.    122;  Burleigh  v. 

Raynall,  2Bingh.  306,  where  itwas  held  Scott,  8  B.  &  C.  36,  and  Jackson   v. 

that  the  fact  of  one  of  tlie  defendants  Fairbank,  2  H.  Bl.   310;  in  which  la:st 

being   but   a    surety    was   immaterial,  case,  one  or  two  joint  makers  of  a  pro- 

VVyatt  v.-  Hodson,  8  Bingh.  309;  Rew  missory  note  having-  become  bankrupt,- 

V.  Pettet,  1  Adol.  &i  El.  196;  Pease  .v.  the  payee  of  the  note  proved  under  the 

(ffl)  The  case  of  Haslerig  v.  Bland,  cited  p.  318,  n.  (^j),  was  a  joint  action  against  four; 
tlie  plea  the  Statute  of  Limitations ;  and  a  verdict  that  one  of  the  defendants  did  assume 
within  six  years,  and  that  the  others  did  not ;  and  it  was  held  by  Follexfen,  C.  J.,  Povvcl, 
and  Rokcby,  (against  Ventris,)  that  the  plaintiff  could  not  have  judgment  against  the 
defendant,  wlio  was  found  to  have  promised  within  the  six  years.-^Tliat  case  may  be 
explained  oia  the  manner  of  the  finding;  for  as  the  plea  was  joint,  and  the  replication  must 
have  alleged  a  joint  undertaking,  the  verdict  did  not  find  what  the  plaintiff  had  bound 
himself  to  prove.  But  according  to  the  principle  in  tlie  case  of  Whilcomb  v.  Whiting,  the 
jury  ought  to  have  considered  the  promise  of  one  as  the  promise  of  all,  and  therefore  should 
have  found  a  general  verdict. against  all. 


W  11  1  T  C  0  M  B    V.     WHITING. 


527 


commission,  and  receiveci  dividends :  and 
it  was  held,  that  the  receipt  of  the  last 
dividend  being  within  six  years  before 
'the  commencement  of  the  action,  took 
the  case  out  of  tlie  Statute 'of  Limita- 
tions as  to  both  makers.  But  where 
one  of  two  joint  drawers  of  a  bill  of 
exchange  become  bankrupt,  and  the 
holder  of  the  bill  proved,  not  upon  the 
bill,  but  for  goods  sold,  exhibiting  the 
bill  as  a  security,  it  was  held  tliat  re- 
ceipt of  dividends  on  that  proof  would 
not  take  the  case  out  of  the  statute,  as 
against  the  other  drawer,  Brandrara  v. 
Wharton,  1  B.  &  A.  463.  A  joint  and 
several  note  is  not  taken  out  of  the 
statute,  as  against  the  executor  of  one 
of  the  makers,  by  a  payment  made  by 
the  other  after  the  death  of  the  deceased 
maker  ;  for  the  joint  contract  is  deter- 

r  *'V:)n  l  "^'"^^  *''y  ^'^'^  death  of  one 
L  "^^^  J  of  the  joint  contractors,  At- 
kins V.  Tredgold,  2  B.  &  C.  23  ;  nor  will 
a  payment  by  the  executor  of  the  de- 
ceased, under  such  circumstances,  take 
the  case  out  of  the  statute  as  against  his 
survivor,  Slater  v.  Lawson,  1  B.  & 
Adol.  390.  But  it  was  ruled  in  Burleigh 
•  V.  Stott,  that  if  one  of  the  two  joint  and 
several  makers  made  a  part-payment 
before  the  death  of  the  other,  that  part- 
payment  will  take  the  case  out  of  the 
statute  against  the  administrator  of  the 
other  after  his  death  ;  for  though  it 
was  urged  that  the  note  being  joint 
.  and"  several,  it  must  be  considered  as  if 
there  were  three  notes,  one  joint  and 
two  several,  and  that  the  payment  only 
operated  as  an  admission  so  far  as  the 
joint  promise  was  concerned,  and  no 
further,  and  consequently,  not,  against 
the  administrator,  who  vvas  sued  on  the 
several  liability  of  his  intestate ;  yet 
Lord  Tfinterden  and  the  rest .  of  the 
court  thought  that  .a  part-payment  by 
one  is  an  admission  by.  both  that  the 
note  is  unsatisfied,  and  that  it  operates 
as  a  promise  by  both  to  pay  according  to 
the  nature  of  the  instrument,  and,  con- 
sequently, as  a  promise  by  defendant's 
intestate  to  pay  this  his  several  promis- 
sory note. 

St.  9  G;  4,  cap.  14,  enacts- that  where 
there  shall  be  two  or  more  joint  con- 
tractors or  executors  or  administrators 
of  any  contractor,  no  such  joint  con- 
tractor, executor  or  administrator,  shall 
Jose  the  benefit  of  t!ie  said  enactments 
(subintell.  Statutes  of  Limitation,)  or 
either  of  them,  so  as  to  be  chargeable 
in  respect  or   by   reason   only  of  any 


written  acknowledgment  or  promise 
made  and  signed  by  any  other  or  others 
of  them:  provided  always  that  nothing 
herein  contained  shall  alter  or  take 
away,  or  lessen  the  effect  of  any  pay- 
ment of  any  principal  or  interest  made 
by  any  person  whatsoever;  provided 
also  that  in  actions  to  be  commenced 
against  two  or  more  such  joint  con- 
tractors or  executors  or  administrators, 
if  it  shall  appear  at  the  trial  or  other- 
wise that  the  plaintiff,  though  barred  by 
either  of  the  said  recited  acts  or  this 
act  as  to  one  or  more  of  sucli  joint  con- 
tractors or  executors  or  administrators, 
shall,  nevertheless,  be  entitled  to  re- 
cover against,  any  other  or  others  of  the 
defendants  by  virtue  of  a  new  acknow- 
ledgment, or  promise  or  otherwise^ 
judgment  maybe  given  and  costs  allow- 
ed for  Ihe  plaintiff  as  to  such  defendant 
or  defendants,  against  whom  he  shall 
recover,  and  for  the  other  defendant  or 
defendants  ag-arnst  the  plaintiff,-  And 
by  sect.  2  it  is  further  enacted,  that  if 
any  defendant  or  defendants  in  any 
action  on  any  simple  contract  shall  plead 
any  matter  in  abatement,  to  the  effect 
that  any  other  person  or  persons  ought 
to  be  jointly  sued  and  issue  be  joined 
on  such  plea,  and  it  shali  appear  at  the 
trial  that  tlie  action  could  not,  by  reason 
of  the  said  recited  acts  or  this  act,  or  of 
either  of  tiiem,  be  maintained  against 
the  other  person  or  persons  named  in : 
such  plea,  or  any  of  them,  the  issue 
joined  on  such  plea  shall  be  found  against 
the  party  pleading  the  sdme.    ■ 

Since  this  enactment,  one  joint  con- 
.tractor  cannot  prevent  the  other  from 
taking  advantage  of  the  Statute  of  Limi- 
tations by  any  species  of  acknowledg- 
ment excepting  a  part-payment  of  prin- 
cipal or. interest.  But  as  the  statute 
expressly  saves  the  effect  of  such  a  pay- 
ment, the  principal  case  of-Whitcomb  v. 
Whiting  is  still  law,  and  has  been  recog- 
nised as  such  in  Wyatt  v.  Hodson,  8 
Bingh.  313,  ubi  per  Park,  Justice:  "I 
have  always  considered.  Whitcomb  v. 
Whiting  a  governing  case,  notwithstand- 
ing some  Qbservations  which  have  been 
thrown  out  against  it;  but  the  case  has 
been  recognised  in  Burleigh  v.  Stott, 
and  confirmed  in  Perham  v.  Raynal, 
where  an  -acknowledgment  by  one  of 
several  joint  contractorson  a  promissory 
note  was  held  to  be  binding  on  the 
others.  That  was,  like  the  present,  the 
case  of  a  surety,  and,  therefore,  expressly 
in  point.    Then  the  recent  statute  hav- 


528 


SMITHS     LEAD  I  JJ«   :C  itp  E  S. 


in""  distinguished  between  the  efiect  of 
a  promise  by  one  of  many  joint  contrac- 
tors, and  the  payment  of  interest  by  such 
a  person,  lh«  law  in  respect  of  such  a 
■payment  remains  where  it  was  under 
the  previous  decisions."   Rew  v.  Pettet, 
1  Adol.  &  Ell.  196,  is  another  case  to 
the  same    effect.     The    reason    which 
induced  the  legislature  to  make  this  dis- 
tinction in  favour  of  payment  is  said  by 
Tindal,  Chief  Justice,  m  Wyatt  v.  Hod- 
son,  to  have  been,  because  the  payment 
of  principal  or  interest  stands  on  a  "  dif- 
r*qon  f«i"ent  *footing   from    the   maii- 
V        -'  ing  of  promises,  which  are  often 
rash  and TU-iulerpreted,  while  money  is 
not  usually  paid  without  deliberation ; 
-and  payment  is  an  unequivocal  act,  so 
little  liable  to  misconstruction  as  rtot  to 
be"  open  to  the  objection  of  an  ordinary 
acknowledgment."  ■ , 
•  Witli  'rcepcct  to  thj3  mode  of  proving 
such  a  payment — it  has  been  held  tliat 
.  if  goods,  be  given  and' accepted  in  part- 
payment  within  six-  years,  that  takes  the 
case  out  of  the  statute.  Hooper  v.  Ste- 
phens, 4  A.  &  E.  71 ;  Hart  v.  Nash,  2  C. 
M.  &  R-  337,     St.  9  G.  4,  cap.  14, 
^ficts,  "that  no  indorsement  or  ihemo- 
randuiaof  any  payment  made,  upon  any 
bill  of  &xcbange,  promissory  note,  ox  other 
writing,,  by,  or  in  behalf  oti  the  person 
to  whom. such  payment  is  made,  shall  be 
deemed  si,iffipient  proof  of  payment  to 
take  the-  case  out  of  the  Statute*of  Lrrn.i'- 
tatiort.;"-:  amf,  "\\\a,l .  part-payment-  may 
have  that-  eltect,  it  ..must  bo  obsGi-yod, 
that  there  are    two   requisites '  besides 
.proof  of  tlic  naked  fact  of  payment.    1st, 
it  must  appear  that,  the  piiyment  \tos 
made  on  accoiint  ofa  larger  debt  ;2ndl.y, 
that  that  debris- i"he. one  aued  for*,  -Tip- 
petts  V.  Heanej  i  'ryi-wh',  77,3.  .'See  the 
judgment  o.f.  Parke, '  J3.  there,-  a  ad  see 
Holme.  V.   Green,    I ,  Stark. .  488.     la 
-Evans  V.  .Davies,;4:.  A<";& -E;.' 840,  "the 
evidence  was  held  sLfffiDteot' for  that  pur-' 
pose.  •  See  further,' JMills  v."  Fowkes,  5' 
Bing.  N.  e.  .45'>;  filoqre  v.  Strong,  1 
Bing.  N.  C.-443,     In  Mills  v,  J'owkes, 
it  vTas  held  thatth-oogh  a  creditor  has  a 
right  to  appropriate  a  payment   made 
generally  to  aii  itonv  ■barve'dby  the  Sta- 
tute of  Limitations,  atili;' such  payment 
is  not  a  payment  on  account  sons  to  take 
the  remainder  of  Uie.  demand  out  of  the 
statute.     In  Willis  v.  Newliam,  S  Y.  & 
J.  518,  the   Court  of  ExclLCquer  -held, 
that  a  verbal  acknowledgment  of  .part- 
payment  of  a  debt  was  '  iiol  sufRcient 
proof  thereof  within   this  statute  ;  .the 


import  of  which  they  construed  to  be, 
that  in  no  case  should  a  mere  verbal 
acknowledgment  take  a  case  out  of  tiie 
Statute  of  Limitations,  whether  that  ac- 
knowledgment were  of  the  existence  of 
the   debt,  or   of  the  fact   of  payment. 
Vide  Trentliam  V.  Deverill,  J3  Bing.  J^- 
C.    397.     The    authority    of  Willie  -iV./' 
Newham  has  been  questioned;  and, .at    ' 
all  events,  it  is  quite  clear,  that  if  the- 
payment  be  proved  as  a  fact,  the  appro- 
priation  of  that   payment  to  the  debt 
which  it  was  sought  to  take  out  of  the 
Statute  of  Lin)itations  may  be  proved  by 
an  admission,  Waters  v.  Tompkins,  2  C. 
M.  &,  R.  726.    That  action  was  brought  ■ 
to  recover  thq  amount  of  five  notes,  one 
for  100/.,  two  for  50/.,  and  two  tor  20Z. 
each  ;  the  evidence  upon  an  issue  joined 
on  plea  of  actio  non  accrevit  infra  sex 
annos  was,  that  withiu   si.'c   years  the 
maker,  the  defendant,  on  application  to 
Inm,  said,  his  wife  would  have  called  on 
the  liolder  and   paid  money  on  .ftccount 
of  the   interest  on   2U0/.  but  for  tli^ir 
child's  illn.ess-;  about  a  fortnight  after 
which,  the  wife  called,  and  paid  15  slul- 
lings,  without  saying  on  what  accgunti 
on  another  occasion  the  defendant  se.nt 
word  to  the  testator  that  his  wife  was 
in  Wales,  or  would  have  called  ivith  the 
interest ;   and  that  the  wife  on  other.' 
occasions  made  paynients  to  the  testat-ori...' 
who  said,  at  the  time,  he  should  be  gdad  ' 
if  the  interest  were  more  fegularly  paid;  . 
This  evidence  was  held-t-o  warrant  the 
jury  in  tinding^a  verdict  foi"  the  plaintitf. 
Nor  need  the  writingwhich.is  relied  on- 
for  the  purpose  of  taking  a  debt- out  of 
tbe  operation  of  the  statute-  specify  its  • 
amount ;  that  may  be  proved  by  pareli; 
Bird  V.  -Gammon,  3  Bing.  N,  C;  8dS;  •  •:' 
.,  -When  a  bill  is  given  '.on  accoHnt--pf- 
-part  of  a  debt,  and  is  paid  by  the  d-rawee," 
the  statute  is  not.-. a.voided  by  such  pay-- 
ment  though  it  may  be',  by  (lie .'delivery 
-of  th©  bill  I  IMug  v..  Veilich,  .3  U.  '& 

':w::-9o..:^-.-./       " .  V \-?'^ -•■'•.••  v 

-  •  An:Attempt,  which  proved,' ht)We"ver-, 
unsuccessful,  was  lately  made  to  oust 
the  defendant  of  hisopportunity  of  plead- 
hig  the  Statute  of -Limitations,  by  aveT'- 
ring  a  payment  of.  interest  within^  six 

■years  in  the  declaration,  instead  ofgiv- 

..ing  it  in  evidence  under  the -replication. 
The  declaration  which  was  on  a  promis- 

-  sory  note  for  127/.  10s.  8(/.,  payable  ori 
demand,  ii)i//j  interest,  after  cominenc- 
in-g'  in  the  ordinary  way,  proceeded;  to 
state  that  the  defendant  "disregarded 
his.  promise,  and  did  not  pay  the  amount 


\VHITCOMB    V.     WHITING. 


529 


t)f  the  note  and  interest,  or  any  part 
thereof,  except  interest  on  the  said  note, 
at  the  rate  ofbl.  per  cent.,  from,  the  day 
of  the  date  of  the  said  note  up  to  a  cer- 
tain day  within  six  years  next  before 
the  commencement  of  this  suit,  to  wit, 
the  26th  April,  1830 ;  which  interest 
was,  within  six  years  next  before  the 
commencement  of  the  suit,  to  wit,  on  the 
last-mentioned  day,  paid  by  the  defen- 
dant to  S.  Davies,"  as  whose  executrix 
the  plaintitf  sued.  Plea,  Actio  non  ac- 
crevit  infra  sex  annos.  Demurrer  and 
joinder.  It  was  contended  for  the  plain- 
tiff, that  the  payment  of  interest  on  the 
note  within  six  years  took  the  entire 
demand  out  of  the  operation  of  the  Sta- 
tute of  Limitations,  and  that  such  pay- 
ment being  averred  in  the  declaration 
and  not  traversed,  the  plea  was  bad, 
since  it  was  founded  on  a  statute  which 
the  declaration  showed  to  be  inappl  icable. 
The  court,  however,  held  the  plea  good, 
upon  the  ground  that  the  payment  of  inte- 
rest within  six  years  did  not  necessarily, 
as  a  proposition  of  law,  taiie  the  debt  out 
of  the  operation  of  the  statute,  but  was 
only  evidence  whence  the  jury  might  in- 
fer the  continuing  existence  of  the  cause 
of  action.  "  Tiie  question  is,"  said  the 
Lord  Chief  Justice,  "  whether  the  first 
plea,  as  pleaded  to  this  count,  is  an  an- 
swer to  the  wliole.  What  is  the  whole  1 
A  cause  of  action  within  six  years, 
j.^  Interest,  *however,  as  separate 

^  '  -'  from  the  principal,  is  not,  of 
itself,  a  cause  of  action,  though  the  pay- 
ment of  it  is  one  mode  of  evidence  to 
show  that,  prima  facie,  a  cause  of  action 
subsists.  That  is  tiie  legal  effect  of  the 
payment.  The  statute  9  G.  4,  c.  14,  s. 
1,  has  this  proviso.  "Provided  always 
that  nothing  herein  contained  shall  alter 
or  take  away,  or  lessen  the  effect  of  any 
payment  of  any  principal  or  interest 
made  by  any  person  whatsoever."  Since 
that  statute,  as  before,  payment  of  inter- 
est may  afiord  an  inference  that  the 
principal  is  still  due.  But  how  are  WG 
to  know  whether  it  is  so  or  not,  unless 
v/e  knew  the  circumstances  under  which 
the  interest  has  been  paid  ]  I  think, 
therefore,  that  the  declaration  discloses 
only  evidence  of  a  cause  of  action,  and 
not  any  actual  cause  of  action  that  has 
not  been  barred  by  the  plea,  and  conse- 
quently that  our  judgment  must  be  for 
the  defendant."  Hollis  v.  Palmer,  2 
Bing.  N.  C.  713. 

Having  touched  on  st.  9  G.  4,  c.  14, 

Vol.  I 34 


it  may  not  be  amiss  to  advert  to  a  case 
of  great  importance  lately  decided  on  it, 
although  not  immediately  bearing  upon 
the  point  in  the  principal  case,  Whit- 
comb  V.  Whiting.  The  enactment  of 
the  first  section  of  the  statute  is,  as  will 
be  recollected,  that  no  acknowledgment 
or  promise  by  words  only  shall  be  deemed 
sufficient  evidence  of  a  new  or  continu- 
ing contract,  "  unless  such  acknow- 
ledgment or  promise  shall  be  made  or 
contained  in  some  writing,  to  be  signed 
hy  the  party  chargeable  thereby.''^  In 
consequence  of  these  last  words,  it  has 
been  solemnly  decided  that  an  acknow- 
ledgment, signed  by  an  agent  in  behalf 
of  the  debtor,  is  not  sufficient;  Hyde  v. 
Johnson,  2  Bingh.  N.  C.  777.  It  doea 
not,  however,  appear  from  that  case,  that 
the  agent,  who  was  tiie  party's  own 
wife,  was  authorised  in  writing ;  so  that, 
perhaps,  some  doubt  may  still  exist 
whether,  if  a  case  were  to  occur,  in 
which  an  agent  authorised  by  writing 
were  to  sign  a  written  acknowledg- 
ment, this  last  would  not  be  looked  upon 
as  sufficiently  connected  with  the  docu- 
ment signed  by  tiie  principal  to  satisfy 
the  words  of  the  statute.  It  must,  how- 
ever, be  observed,  that  the  expressions 
used  by  the  Chief  Justice,  in  Hyde  v. 
Johnson,  are  extremely  comprehensive, 
and  seem  to  militate  against  such  a  dis- 
tinction. "  Looking,"  says  his  lordship, 
"  at  the  words  of  the  statute,  it  is  con- 
fined in  terms  to  a  writing  signed  by  the 
party  chargeable  thereby;  and  as  the 
effect  of  that  statute  is,  for  the  first  time, 
to  introduce  a  legislative  exception  into 
the  statute  21  Jac.  1,  c.  16;  and  there- 
by, pro  tanto,  to  repeal  it,  we  do  not  feel 
ourselves  justified  in  extending  such  ex- 
ception beyond  the  plain  and  unambi- 
guous meaning  of  the  words  employed 
therein.  The  legislature  has,  in  many 
cases,  given  equal  efficacy  to  written 
instruments  when  signed  by  the  parties, 
and  when  signed  by  their  agents ;  but 
in  all  those  cases  express  words  have 
been  employed  for  that  purpose.  The 
Statute  of  Frauds,  in  its  third  section, 
requires,  for  the  purposes  of  that  section, 
a  note  in  writing  to  be  signed  by  the 
party,  "or  their  agents  thereto  lawfully 
authorised  by  writing;'"  in  the  fourth 
section  a  memorandum  or  note  in  vvrit- 
ing  is  required,  -'signed  by  the  party  to 
be  charged  therewith,  or  some  other  per- 
son thereto  by  him  lawfully  author- 
ised;" in  the  fit\h  section,  a  devise  of 


530 


smith's  le  a  din  g  c  ase  s. 


lands  is  required  to  be  made  in  writing-, 
to  be  signed  by  the  party  so  devising, 
"  or  by  some  other  person  in  his  pre- 
sence, and  by  his  express  directions;" 
in  the  seventh  section,  a  declaration  of 
trusts  of  any  lands  shall  be  in  writing, 
♦'  signed  by  the  party ;"  and  lastly,  the 
seventeenth  section  requires,  upon  the 
sale  of  goods,  that  there  shall  be  some 
note  or  memorandum  in  writing  of  the 
bargain,  "  signed  by  the  parties  to  the 
contract,  or  their  agents  tliereunto  law- 
fully authorised."  It  appears,  there- 
fore, that  the  legislature  well  knew  how 
to  express  the  distinction  not  only  be- 
tween a  signature  by  the  party,  and  a 
signature  by  his  agent ;  but  also  to  de- 
scribe the  different  modes  in  which 
agents  for  different  purposes  are  to  be 
appointed.  The  same  observation  arises 
upon  referring  to  the  more  recent  sta- 
tutes, 3  &  4  VV.  4,  c.  27,  s.  42,  and  c. 
42,  s.  5.  When,  therefore,  we  find  in 
the  statute  now  under  consideration,  that 
it  expressly  mentions  the  signature  of 
the  party  only,  we  think  it  a  safer  con- 
struction to  adhere  to  the  precise  words 
of  the  statute,  and  that  we  should 
be  legislating,  not  interpreting,  if  we 
r  *^2^  1  extended  *its  operation  to 
L  -'    writings  signed,  not   by  the 

party  chargeable  thereby,  but  by  his 
agent." 

If  the  question  just  suppose  1  were  to 
be  mooted,  a  good  deal  would  depend 
upon  the  wording  of  the  agent's  written 
authority.  Supposing,  by  tliat  authority, 
A.  were  to  direct  the  agent  "  to  investi- 
gate the  account  between  himself  and 
B.,  and  to  acknowledge  the  balance,  if 
any  should  appear  to  be  due ;"  it  possi- 
bly might  be  urged  that  the  acknow- 
ledgment, when  made  and  signed  by  the 
agent,  would,  if  it  referred  in  terms  to 
the  authority,  be  incorporated  by  refer- 
ence thereunto,  in  the  same  way  that  the 
instrument  by  which  a  power  is  execut- 
ed becomes,  in  contemplation  of  law, 
part  of  the  deed  by  which  the  power  was 
created.  Supposing  that,  in  the  case 
just  put,  the  written  acknowledgment  by 
the  agent  were  to  be  held  sufficiently 
connected  with  the  signature  of  the  prin- 
cipal to  satisfy  the  exigency  of  the  sta- 
tute, might  it  nct.be  urged  with  some 
plausibility,  that  as  omne  miajus  continet 


in  se  minus,  less  effect  could  not  be 
given  to  the  signature  of  an  agent  act- 
ing under  a  general  authority  1  It  may 
be  observed,  too,  that  the  policy  of  the 
act  would  by  no  means  militate  against 
such  arguments,  for  the  object  of  the 
statute  was  to  prevent  a  claim  from 
being  made  out  after  the  lapse  of  a 
number  of  years  by  mere  parol  testi- 
mony ;  an  object  which  is  by  no  means 
defeated  by  allowing  it  to  be  made  out 
by  any  number  of  wri/^en  documents,  no 
matter  by  whom  signed,  provided  there 
be  written  evidence  to  show  that  they 
all  emanate  from  the  party  to  be  charg- 
ed, and  are  clothed  with  his  assent. 
Thus,  under  the  Statute  of  Frauds,  the 
policy  of  which  is  similar  to  that  of  9  G. 
4,  c.  14,  the  contract  may  be  contained 
by  any  number  of  writings,  provided 
they  can  be  connected  in  sense,  without 
the  interposition  of  parol  evidence.  Cob- 
bold  v.  Caston,  1  Bingh.  399;  Jackson 
V.  Lowe,  Ibid.  9;  Phillimore  v.  Barry, 
1  Camp.  513;  Saunderson  v.  Jackson,  2 
B.  &.  P.  238.  Suppose  A.  were  in  writ- 
ing to  acknowledge  a  debt  due  from  B. 
to  C,  and  B.  were  aflerwards,  by  writ- 
ing signed,  expre.ssly  to  approve  of  that 
acknowledgment ;  would  not  such  an 
approval  be  sufbcient  to  take  the  debt 
out  of  the  operation  of  the  statute]  may 
it  not  be  contended  that  the  maxim 
omnis  ratihibitio  retrotrahitur  et  man- 
date equiparatur  is  convertible,  and 
that,  if  such  a  subsequent  approval  by 
B.  would  sulBce,  a  previous  authori- 
ty, similarly  signed,  would  .suffice 
also] 

There  is  in  the  9  G.  4,  c.  14,  a  pro- 
viso that  "  no  memorandum  or  other 
writing  made  necessary  by  this  act  shall 
be  deemed  to  be  an  agreement  within 
any  Stamp  Act.  The  effect  of  this  ap- 
pears to  be  to  render  the  stamp  unne- 
cessary where  the  agreement  is  put  in 
merely  for  the  purpose  of  avoiding  the 
Statute  of  Limitations,  the  debt  having 
been  proved  aliunde.  But  if  it  were  put 
in  as  the  only  evidence  of  a  debt  tliough 
more  than  six  years  old,  semble  that  it 
would  require  a  stamp,  Morris  v.  Dixon, 
4  Ad.  &L  Ell.  845.  The  proviso  has 
been  held  to  be  inapplicable  to  the  case 
of  an  unstamped  promissory  note,  Jones 
V.  Ryder,  4  M.  &  W.  32. 


WHITCOMB     V.     WHITING.  531 

In  order  to  understand  how  far  a  payment  or  acknowledgment  by  one  of 
several  co-contractors,  should  be  allowed  to  take  out  of  the  statute  of  limi- 
tations as  against  the  rest,  a  cause  of  action  arising  under  the  joint  contract, 
it  is  necessary  to  inquire  into  the  general  principles,  on  which  evidence  of 
subsequent  facts  or  admissions  is  received  to  prevent  the  operation  of  that 
statute,  as  a  bar  to  a  recovery. 

It  would  now  appear  to  be  generally  recognised  in  the  United  States, 
that  in  order  to  take  a  case  out  of  the  statute  of  limitations,  there  must  be 
evidence  of  a  new  promise,  either  express  or  implied,  although  such  pro- 
mise may  be,  and  when  the  declaration  pursues  the  original  facts,  must  be, 
supported  by  the  old  consideration.  Thus  it  has  been  repeatedly  and 
expressly  decided  by  the  Supreme  Court  of  New  York,  that  to  prevent  the 
operation  of  the  statute  as  a  bar,  there  must  have  been  within  six  years, 
either  an  express  promise,  or  the  acknowledgment  of  a  subsisting  debt  and 
of  a  willingness  to  pay  it,  from  which  a  promise  of  payment  may  be 
implied.  With  whatever  clearness  the  debt  be  acknowledged,  if  the  debtor 
at  the  same  time  express  an  intention  not  to  pay,  there  can  in  that  state  be 
no  recovery ;  and  the  same  result  will  follow  even  on  a  contingent  or  con- 
ditional promise  of  payment,  unless  the  condition  or  contingency  be  shown 
to  have  occurred,  or  to  have  been  performed.  Allen  v.  Webster,  15  Wen- 
dell, 284  ;  Stafford  v.  Richardson,  15  Wendell,  302  ;  Gaylord  v.  Van  Loan, 
15  Wendell,  308  ;  Hancock  v.  Bliss,  7  Wendell,  267;  Stafford  v.  Bryan, 
3  Wendell,  532  ;  Purdy  v.  Austin,  3  Wendell,  187  ;  Sands  v.  Gilston,  15 
Johnson,  511;  Danforth  v.  Culver,  11  Johnson,  146.  The  law  is  held  to  the 
same  effect  in  Massachusetts.  "  If  more  than  six  years  have  elapsed  since 
the  making  of  the  promise,  or  since  the  cause  of  action  thereon  accrued,  it 
must  appear  that  the  defendant  has  made  a  new  promise  to  pay,  within  six 
years.  Such  promise  may  be  express  or  implied,  and  a  jury  will  be 
authorised  and  bound  to  infer  such  promise,  from  a  clear  unconditional  and 
unqualified  admission  of  the  existence  of  the  debt,  at  the  time  of  such 
admission,  if  unaccompanied  with  any  refusal  to  pay,  or  declarations  indi- 
cative of  an  intention  to  insist  on  the  statute  of  limitations  as  a  bar." 
Sigourney  v.  Drury,  14  Pick.  390.  Per  Shaw,  C.  J.  It  thus  appears, 
that  however  unqualified  may  be  the  acknowledgement  of  a  debt,  if  unac- 
companied by  expressions  of  an  intent  not  to  pay  it,  or  to  resort  to  the 
statute  for  protection,  no  recovery  can  be  had  in  xMassachusetts,  on  a  cause 
of  action  accruing  more  than  six  years  before  action  brought ;  and  such 
have  been  the  repeated  decisions  of  the  Supreme  Court  of  that  state,  Bangs 
v.  Hall,  2  Pick.  378  ;  Barley  v.  Crane,  21  Pick.  323  ;  Barnard  v.  Bartholo- 
mew, 22  Id.  291  ;  Munford  v.  Freeman,  8  Metcalf,  432. 

The  same  law  has  been  repeatedly  and  unequivocally  declared  by  the 
Supreme  Court  of  Pennsylvania.  A  new  promise  is  held  necessary,  and 
on  the  maxim  "  expressum  facit  cessare  taciturn,"  the  fullest  acknowledg- 
ment of  a  debt  is  not  permitted  to  raise  a  legal  promise  of  payment,  when 
accompanied  with  expressions,  inconsistent  with  the  existence  of  an  intent 
to  make  such  promise.  Fries  v.  Boisselet,  9  Sergeant  &  Rawle,  128  ; 
Church  V.  Fetcrow,  2  Penn.  305  ;  Hogan  v.  Bear,  5  Watts,  111  ;  Berg- 
haus  V.  Calhoun,  6  Watts,  220  ;  Allison  v.  James,  9  Watts,  381  ;  Hay  v. 
Kramer,  2  W.  &  S.  138;  Gylkinson  v.  Larue,  6  Id.  217.  Of  course 
under  this  view  of  the  law,  if  the  promise,  whether  express  or  implied  from 


532  smith's   leading   cases. 

the  acknowledgment,  be  conditional,  proof  of  performance  of  the  condition 
must  be  given  in  order  to  charge  the  debtor.  Read  v.  Wilkinson,  2  Wash. 
C.  C.  R.  514.  The  Supreme  Court  of  the  United  States  has  repeatedly 
determined,  that  evidence  of  the  confessions  of  the  defendant  that  the  debt 
still  subsists,  will  not  render  him  liable,  when  more  than  six  years  have 
elapsed  since  the  cause  of  action  accrued,  unless  where  they  are  unqualified 
by  any  expressions,  inconsistent  with  an  intent  of  payment.  This  doctrine 
was  held  by  Marshall,  C.  J,,  in  Wetzell  v.  Bussard,  11  Wheaton,  315, 
and  still  more  strongly  laid  down  in  the  subsequent  case  of  Moore  v.  Bank 
of  Columbia,  6  Peters,  92.  It  was  there  said,  that  to  take  a  case  out  of  the 
statute,  "  where  there  w'as  no  express  promise,  there  must  be  an  unqualified 
and  direct  admission  of  a  subsisting  debt  which  the  party  is  w'illing  to  pay," 
and  that  if  there  were  "  accompanying  circumstances  which  repelled  the 
intention  to  pay,"  the  plaintiff' could  not  recover. 

It  has  been  established  by  repeated  decisions  of  the  courts  of  Maine,  Ver- 
mont, and  New  Hampshire,  that  the  law  in  those  states  coincides  with  that 
already  stated  as  generally  prevailing  throughout  the  Union  ;  and  that  to 
entitle  the  plaintiff' to  recover  in  assumjosit  on  a  cause  of  action  which  has 
not  accrued  within  six  years,  there  must  be  a  new  promise  of  payment,  or 
evidence  from  w'hich  such  promise  may  be  clearly  implied.  M'Lellan  v. 
AUbee,  17  Maine,  184  ;  Pray  v.  Garcelon,  id.  145  ;  Porter  v.  Hill,  4  Green- 
leaf,  41  ;  Perley  v.  Little,  3  Greenleaf,  97  ;  Cross  v.  Conner,  14  Vermont, 
398;  Phelps  v.  Stewart,  12  Vermont,  263;  Exeter  Bank  v.  Sulhvan,  6 
New  Hampshire,  132. 

The  law  in  Kentucky  is  held  to  the  same  effect.  Tillet  v.  Lindsay,  6 
Marshall,  337  ;  Executor  of  Head  v.  Executor  of  Manners,  5  Marshall, 
209 ;  Harrison  v.  Handley,  1  Bibb,  443  ;  Gray  v.  Law^ridge,  2  Bibb,  285 ; 
and  in  like  manner  in  Edgerton  v.  Cates,  Wright's  Ohio  Reports,  84,  it  was 
determined,  that  to  take  a  case  out  of  the  statute,  there  must  be  an  express 
promise,  or  the  acknowledgment  of  a  still  subsisting  debt,  for  the  payment 
of  which  a  promise  might  be  implied. 

The  necessity  of  a  new  promise,  or  of  evidence  whence  a  new  promise 
may  be  implied  for  the  purpose  of  avoiding  a  plea  of  the  statute  of  limita- 
tions, is  now  as  well  settled  in  England  as  in  this  country;  and  although 
it  is  admitted,  that  a  distinct  and  unambiguous  acknowledgment  of  the  debt 
will  suffice  ;  Gardner  v.  M'Mahon,  3  a.  B.  561  ;  Walter  v.  Lacy,  1  M.  & 
G.  54 ;  Dodson  v.  Mackey,  8  Ad.  &  El.  225  ;  yet  it  has  been  repeatedly 
determined,  that  if  such  acknowledgment  be  accompanied  with  any  qualifi- 
cation  tending  to  rebut  the  implication  of  a  promise  of  payment,  Avhich 
would  otherwise  arise,  there  can,  in  such  cases,  be  no  recovery.  Routledge 
V.  Ramsay,  8  Ad.  &  El.  221  ;  Spong  v.  Wright,  9  M.  &  W.  629  ;  Hart 
v.Prendergast,  14  Id.  741;  Cripps  v.  Davis,  12'ld.  159;  Morrell  v.  Frith,  3 
Id.  402.  The  operation  and  extent  of  this  rule  in  that  country,  will  best 
appear  from  the  language  held  by  Lord  Denman  in  deciding  the  case  of 
Bateman  v.  Pinder,  3  Q,.  B.  574,  where,  on  a  traverse  of  a  plea  of  the 
statute,  an  attempt  was  made,  on  the  authority  of  Yea  v.  Fouraker,  2  Burr. 
1099,  to  support  the  issue  on  the  part  of  the  plaintiff^  by  evidence  of  a  pay- 
ment by  the  defendant  since  action  brought.  "This  case,  when  we  con- 
sider it,"  said  his  lordship,  "  is  very  clear.  Yea  v.  Fouraker  is  acknow- 
ledged as  an  authority  in  Thornton  v.  lUingworth  ;  but  the  judges  distin- 


WHITCOMB     V.     WHITING.  533 

guish  it  from  that  case.     Yea  v.  Fouraker  was  rightly  decided,  if,  as  Bay- 
ley  and  HoLROYD,  Js.,  hiy  it  down  in  the  subsequent  case,  the  statute  of 
limitations  takes  effect  upon  the  ground  that  after  a  certain  time,  it  shall  be 
presumed,  that  the  debt  has  been  discharged.     For,  if  that  be  so,  an  acknow- 
ledgment made  at  any  time,  will  rebut  that  presumption.     But  in  Tanner 
V.  Smart,  6  B.  &  C.  602,  the  earlier  cases  were  revised,  and  the  doctrine 
as  to  presumption  of  payment  repudiated  ;  and  it  was  held,  that  to  prevent 
the  operation  of  the  statute,  a  distinct  promise  was  necessary.     That  pro- 
mise must  be  before  action  brought."     And  as  the  promise  which  the  law 
implies  in  such  cases,  although  generally  identical  in  legal  effect  with  that 
previously  existing,  is  to  be  regarded  as  new   and   distinct,  there  would 
seem  to  be  no  doubt,  that  it  might,  in  all  cases,  be  made  the  foundation  ot 
an  action  of  special  assumpsit,  setting  forth  the  original  liability  of  the 
defendant,  the  interposition  of  the  bar  of  the  statute,  and  the  subsequent 
promise  of  payment  by  the  defendant.     Such,  at  least,  would  seem  to  be 
the  course  which  not  only  may,  but  must  be  pursued  where  the  new  pro  ■ 
mise  is  so  far  special  in  its  nature  as  not  to  coincide  with  the  terms  of  the 
original  contract,  as  must  always  be  the  case  where  both  are  not  of  a  nature 
to  admit  of  being  enforced  in  indebitatus  assumpsit.     Thus  in  Lechmere  v, 
Fletcher,  1  Cr,  &M.  623,  the  declaration  recited  a  joint  liability  on  the  part 
of  the  defendant  and  one  Fulljames  to  pay,  on  request,  a  debt  due  by  them 
jointly  more  than  six  years  before  action  brought,  and  then  averred  that 
this  liability  having  been  barred  by  the  statute  of  limitations,  the  defendant, 
in  consideration  of  the  premises,  had   promised  to  pay  his  proportion  of  the 
debt  upon  application  being  made  to  him  for  the  purpose.     It  appeared  in 
evidence,  that  subsequently  to  this  promise,  the  plaintiff  had  sued  Fulljames 
and  the  defendant  upon  the  original  contract,  and  obtained  a  verdict  and 
judgment  against  the  former  on  the  general   issue,  but  that  a  verdict  and 
judgment  had  at  the  same  time  been  entered  for  the  latter,  both  on  the  gen- 
eral issue,  and  a  plea  of  the  statute  of  limitations.     It  was,  however,  decid- 
ed by  the  court,  not  only  that  the  declaration  on  the  new  promise  was  good, 
but  that  it  was  not  barred  by  what  had  taken  place  in  the  former  suit, 
which  was  held  to  have  been  on  a  different  cause  of  action. 

As  soon  as  it  became  generally  admitted,  that  to  prevent  the  statute  of 
limitations  from  operating  as  a  bar,  evidence  showing  a  new  promise  was 
necessary,  it  might  have  been  supposed  that  the  ordinary  rules  of  law  and 
pleading,  would  have  been  held  as  applicable  to  a  promise  of  this  nature  as  to 
any  other,  and  that  it  would  not  be  sufficient  as  a  ground  of  recovery,  when 
varying  from  the  averments  in  the  declaration,  or  when  proved  to  have  been 
made  by  parties  other  than  those  who  are  there  charged  as  defendants.  But 
although  the  courts  on  both  sides  of  the  Atlantic  have  in  certain  cases, 
determined,  that  to  avoid  the  statute,  there  must  be  shown  a  promise 
corresponding  with  that  in  the  declaration,  and  made  by  the  defendant  or  by 
some  one  acting  under  authority  from  him,  yet  with  the  exception  of  the 
Supreme  Court  of  the  United  States  and  those  of  Pennsylvania  and  New 
Hampshire,  this  doctrine  does  not  appear  to  have  been  uniformly  followed 
by  any  superior  tribunal  in  this  country  or  in  England. 

As  early  as  the  case  of  Green  v.  Crane,  2  Lord  Raymond,  1101,  it  was 
decided  by  Holt,  C.  J,,  that  where  the  declaration  averred  a  promise  to  a 
testator,  evidence  could  not  be  received  of  an  acknowledgment  made  within 


534  smith's   leading   cases. 

six  years  to  the  executor,  which  was  held  to  be  out  of  the  issue.  In  Ward 
V.  Hunter,  6  Taunton,  210,  the  doctrine  of  Green  v.  Crane  was  afnrmed  by 
the  C.  B.  under  circumstances  of  a  similar  character.  The  cases  of  Jones  v. 
Moore,  5  Binney,  576,  and  Lunds  v.  Jamison,  4  M>Cord,  93,  are  to  the  same 
effect;  and  it  was  there  decided,  that  an  acknowledgment  of  the  debt  made 
within  six  years  to  the  personal  representatives  of  the  creditor,  by  whom 
the  suit  was  brought,  although  implying  a  promise,  yet  merely  implied  a 
promise  to  the  executors,  and  consequently  was  not  sufBcient  to  support  a 
verdict  in  their  favour,  on  an  issue  joined  under  a  plea  of  non-assumpsit 
infra  sex  annostoa  declaration,  averring  a  promise  to  the  testator. 

These  cases  evidently  proceeded  upon  the  idea  of  a  new  promise,  although 
at  the  period  when  Green  v.  Crane  was  decided,  not  generally  recognised 
in  England  ;  since,  if  regarded  merely  as  evidence,  it  is  quite  immaterial  to 
whom  an  acknowledgment  is  made,  provided  that  it  proceed  from  the  debt- 
or. Whitney  v.  Bigelow,  4  Pick.  110.  113.  They  would  appear  moreover, 
to  determine,  what  indeed  might  seem  sufficiently  evident  in  itself,  that, 
independently  of  agency  growing  out  of  authority  or  ratification,  neither  of 
which  are  possible  between  a  testator  and  his  personal  representative,  the 
law,  from  an  acknowledgment  to  one  party,  cannot  imply  a  promise  to 
another,  even  for  the  purpose  of  removing  the  bar  of  the  statute  of  limitations. 

In  determining  that  an  acknowledgment  to  an  executor,  would  not  sup- 
port an  averment  of  a  promise  to  the  testator,  these  cases  would  appear  also 
to  have  determined,  by  implication,  the  collateral  proposition,  that  where  the 
declaration  averred  a  promise  b}''  the  testator,  an  acknowledgment  by  his 
personal  representative  could  not  be  received  as  evidence,  under  an  issue 
joined  on  the  plea  of  non-assumpsit  infra  sex  annos. 

In  the  case  of  Thompson  v.  Peters,  12  Wheaton,  565,  this  point  was 
brought  before  the  Supreme  Court  of  the  United  States,  and  Marshall,  C. 
J.,  decided  that  where  the  statute  of  limitations  had  been  pleaded  to  a  de- 
claration averring  a  promise  by  an  intestate,  evidence  of  an  acknowledgment 
made  within  six  years  by  the  administrator,  against  whom  the  suit  had 
been  brought,  would  not  enable  the  plaintifi'to  recover.  And  it  may  there- 
fore be  considered  as  established,  both  in  England  and  the  United  Slates, 
that  where  the  cause  of  action  set  forth  by  the  plaintifij  is  a  promise  made 
by,  or  to  a  party  deceased,  evidence  merelj'  implying  a  promise  by,  or  to 
his  personal  representative,  will  be  inadmissible  on  the  ground  of  variance - 
And  on  the  same  principle,  it  was  held  in  the  recent  case  of  Benjamin  v. 
De  Groot,  1  Denio,  151,  that  where  the  declaration  proceeded  on  promises 
averred  to  have  been  made  by  the  testator,  a  replication  setting  forth  a  new 
promise  by  the  executor  as  an  answer  to  a  plea  of  the  statute,  was  neces- 
sarily bad  as  a  departure. 

The  difficulty  presented  by  the  case  of  Green  v.  Crane,  and  the  decisions 
which  have  since  proceeded  upon  its  authority,  was  obviated  by  resorting 
to  a  count,  laying  a  promise  to  the  executor,  whenever  it  was  meant  to  rely 
upon  an  acknowledgment  to  him,  for  the  purpose  of  taking  the  case  out  of 
the  statute  of  limitations.  Executors  of  the  Duke  of  Marlborough  v.  Wid- 
more,  2  Strange,  890  ;  Martin  v.  Williams,  17  Johnson,  331. 

In  this  way  the  danger  of  a  variance  was  avoided,  where  suits  were 
brought  by  personal  representatives;  and  in  suits  against  them,  a  similar 
course  was  adopted*  where  the  plaintiff  intended  to  avail  himself  of  their 


WHITCOMB     V.     WHITING.  596 

acknowledgments  or  promises  with  regard  to  debts,  for  which,  independently 
of  the  statute,  the  estates  which  they  represented  would  have  been  liable. 
Thus  it  is  universally  admitted,  that  in  an  action  brought  to  recover  a  debt 
due  by  a  party  deceased,  and  still  subsisting  as  hability  against  his  estate,  the 
plaintifi'may  join  in  his  declaration  a  count  on  a  promise  by  the  executor  as 
such,  to  a  count  averring  a  promise  by  the  testator,  and  that  the  judgment 
on  both  will  be  de  bonis  testatoris.     There  is  moreover  no  doubt,  that  any 
evidence  implying  a  promise  by  the  executor,  in  his  representative  capa- 
city, may  be  given  without  danger  of  a  variance,  when  this  mode  of  declar- 
ing is  resorted  to.     But  it  would  seem  to  be  well  settled  by  the  recent  deci- 
sions on  this  subject,  that  although  where  a  debt  is  acknowledged  to  exist 
by  a  party  who  is  personally  bound  to  pay  it,  a  promise  for  payment  must 
be  implied  ;  yet  that  no  such  implication  arises,  where  the  acknowledgment 
is  made  with  regard  to  the  debt  of  another,  not  due  by  the  party  making 
the  acknowledgment,  and  consequently  that  a  mere  admission  by  a  personal 
representative  of  the  continuance  of  a  debt,  will  not  be   sufficient,  evea 
under  a  count  averring  a  promise  by  him,  to  enable  the  plaintiff  to  recover. 
Oakes  v.  Mitchell,  15  Maine,  360;  Executors  of  Head  v.  Administrators 
of  Manners,  5  Marshall,  263  ;  Tullock  v.  Dunn,  Ryan  &  Moody,  478,      In 
the  latter  case  it  was  ruled  by  Abbot,  C.  J.,  that  in  an  action  against  two 
executors,  on  promises  averred  to  have  been  made  by  them  in  their  repre- 
sentative capacity,  evidence  of  an  unqualified  acknowledgment  by  both,  and 
an  express  promise  by  one,  would  not  entitle  the  plaintiff"  to  a  verdict,  on  aa 
issue  joined  under  a  plea  of  the  statute  of  limitations.     The  point  raised  in 
these  cases  did  not,  however,  depend  upon  any  question  as  to  the  power  of 
the  personal  representatives  of  a  debtor  to  remove  the  bar  of  the  statute  of 
limitations  by  an  express  promise  for  the  payment  of  the  debt,  but  merely 
on  the  question,  whether  their  acknowledgments  or  admissions  were  to  be 
placed  on  the  same  footing  with  those  of  persons  acting  in  their  own  right, 
and  whether  an  obligation  binding  the  estate  could  be  created  by  the  act  of 
one  of  several  executors  or  administrators,  or  required  the  concurrence  of 
all.     On  both  these  points,  the  decision  of  Lord  Tenterden  in  Tullock  v. 
Dunn,  is  strongly  supported  by  the  language   held  by  Parke,   Baron,  in 
Scholey  v.  Walton,  10  M.  &  W.  510.  512,  where  it  was  said,  that  Tullock 
V.  Dunn  was  founded  in  good  sense,  and  ought  to  be  followed. 

In  the  recent  case  of  the  Cayuga  Bank  v.  Bennett,  5  Hill,  236,  it  was 
said  by  Cowen,  J.,  that  if  the  acts  or  admissions  of  one  of  several  executors 
were  sufficient  to  remove  the  bar  of  the  statute  of  limitations,  it  could  only 
be  as  an  exception  to  the  general  rule  in  New  York,  under  which  they  were 
not  admissible  in  evidence  against  the  estate,  unless  made  by  all,  and  it  was 
therefore  decided,  that  in  an  action  brought  against  the  three  executors  on 
a  promissory  note  made  by  the  testator,  a  promise  to  pay  by  two  would  not 
support  a  recovery,  nor  even  enure  as  evidence  in  proof,  that  due  notice 
had  been  given  of  the  dishonour  of  the  instrument. 

In  those  states  of  this  country  where  the  authority  of  executors  or  admin- 
istrators is  held  to  be  sufficient  to  revive  the  obligation  of  a  debt  barred  by 
the  statute  of  limitations,  the  weight  of  authority  appears  on  the  whole  to 
be  in  favour  of  the  proposition,  that  an  express  promise  by  one  may  be  relied 
on  as  evidence  for  that  purpose  in  a  suit  brought  against  all;  Johnson  v. 
Beardslee,  15  Johnson,  3  ;  Briggs  v.  Executors  of  Starkie,  2  S.  Carolina 


536  smith's   leading  cases. 

Constitutional  Rep.  Ill;  Herd's  Administrators  v.  Lee,  4  Monroe,  46. 
And  in  Massachusetts,  the  law  is  held  the  other  way  with  regard  to  both 
the  points  above  considered ;  and  a  mere  acknowledgment  by  one  executor 
will  take  the  case  out  of  the  statute  in  a  suit  against  all ;  Baxter  v.  Penni- 
man,  8  Mass.  133. 

In  Pennsylvania,  on  the  other  hands,  the  cases  have  gone  still  further 
than  the  ruling  of  Lord  Tenterden  above  cited.  The  Supreme  Court 
there  would  seem  to  have  entertained  the  opinion,  that  where  a  declaration 
relies  on  a  promise  by  an  executor,  as  such,  for  the  payment  of  a  debt  due 
by  his  testator,  the  foundation  of  this  implied  promise,  is  not  the  original 
consideration  moving  to  the  testatator,  but  the  liability  for  the  discharge  of 
the  debt,  which,  in  his  representative  capacity,  the  law  imposes  upon  the 
executor.  Of  course,  under  this  view  of  the  case,  where  the  liability  in 
question  is  prevented  from  attaching  by  the  bar  of  the  statute,  there  can  no 
longer  be  any  consideration  either  for  an  express  or  implied  promise  by  the 
executor  or  administrator,  as  such,  for  the  discharge  of  the  debt;  since  the 
representative  liability,  which  is  the  basis  of  such  representative  promise, 
has  no  longer  any  existence.,  In  accordance  with  this  reasoning,  it  was 
decided  in  the  cases  of  Fritz  v.  Thomas,  1  Wharton,  71,  and  Reynolds  v. 
Hamilton,  7  Watts,  426,  that  even  where  there  was  shown  by  the  evidence, 
an  express  undertaking  by  an  executor  for  the  discharge  of  a  debt  barred  by 
the  statute,  the  plaintiff  could  not  recover,  either  on  a  count  averring  a 
promise  by  the  executor,  or  by  the  testator. 

The  law  as  to  this  point,  had  been  previously  held  substantially  to  the 
same  effect,  in  the  case  of  Peck  v.  Botsford,  7  Connecticut,  172.  It  does 
not,  however,  appear,  that  in  Thompson  v.  Peters,  which  has  sometimes 
been  cited  as  estaljlishing  the  same  point,  Marshall,  C.  J.,  went  farther 
than  to  determine,  that  under  a  count  solely  relying  on  a  promise  by  the  tes- 
tator, evidence  proving  or  implying  a  promise  by  the  executor,  was  neces- 
sarily bad  for  variance. 

There  may  be  some  inconvenience,  or  even  inconsistency,  in  the  course 
thus  pursued  by  the  courts  of  Pennsylvania  and  Connecticut,  since  in  the 
former  state,  if  the  executor  chooses  to  pay  a  debt  barred  by  the  statute,  he 
is  entitled  to  insist  on  it  as  a  subsisting  obligation,  either  against  distributees 
or  other  creditors.  But  it  must  be  admitted,  that  in  point  of  principle,  the 
arguments  by  which  these  decisions  are  supported,  are  exceedingly  strong. 
Much  doubt  exists,  whether  a  promise  given  by  an  executor,  to  pay  a  debt 
due  by  the  estate,  not  supported  by  some  new  consideration  can  be  binding 
for  any  purpose  ;  and  it  is  well  settled,  that  a  declaration  upon  it  will  be 
bad,  unless  containing  an  averment  that  the  defendant,  at  the  time  of 
making  it,  was  possessed  of  assets  sufficient  to  meet  the  obligation  which  it 
imposes.  Rann  v.  Hughes,  7  Term,  350.  Even  with  such  an  averment, 
it  has  been  held,  that  an  action  of  this  sort  will  not  lie  ;  1  Roll.  Ab.  24.  30 ; 
and  although  an  opposite  decision  was  made  in  the  previous  case  of  Tre- 
vinian  v.  Howell,  Croke  Eliz.  91,  yet  both  on  principle,  and  the  express 
determination  in  that  case,  it  is  certain  that  the  judgment,  under  such  cir- 
cumstances, must  be  de  bonis  propriis,  and  not  de  bonis  testatoris,  and  that, 
instead  of  giving  effect  to  the  former  liability  of  the  estate,  it  will  create  a 
new  one,  as  against  the  person  of  the  executor.    It  would,  therefore,  appear 


WHITCOMB     V.     WHITING.  537 

that  if  the  cases  in  Pennsylvania  and  Connecticut  are  wrong',  and  those 
which  admit  that  a  promise  by  the  executor  will  render  the  estate  liable  for 
a  debt  barred  by  the  statute,  notwithstanding  his  subsequent  dissent,  are  to 
be  supported,  it  must  either  be  as  an  exception  to  the  general  rule,  which 
makes  a  naked  parol  promise  by  him  worth  nothing,  or  on  the  doctrine 
assumed  in  Massachusetts,  that  evidence  whence  to  imply  a  new  promise  is 
in  such  cases  unnecessary,  and  that  any  acknowledgment  proceeding  from 
a  party  in  interest  will  be  sufficient,  Whitney  v.  Bigelow,  4  Pick.  HO. 
Emmerson  v.  Thomas,  16  Mass.  431. 

In  Atkins  v.  Tregold,  2  Barn.  &  Cress,  225,  the  general  doctrine  that  to 
take  a  case  out  of  the  statute  of  limitations,  the  evidence  given  must  be  such, 
as  would  establish  a  promise  by  the  defendant,  under  other  circumstances, 
was  applied  to  a  suit  against  executors,  on  a  joint  and  several  promissory 
note,  made  by  their  testator.  The  declaration  contained  a  variety  of  counts, 
in  some  of  which  the  promises  were  stated  to  have  been  made  by  the  testa- 
tor, in  others,  by  the  executors,  and  issue  having  been  joined  on  a  plea,  that 
the  cause  of  action  had  not  accrued  within  six  years,  the  plaintifls  offered 
in  evidence  a  payment  on  the  note,  made  within  that  time,  by  one  of  the 
executors,  who  was  an  original  party  to  the  instrument,  and  jointly  liable 
thereon.  But  as  the  payment  was  shown  to  have  been  made  by  the  exe- 
cutor, with  the  intention  of  discharging  his  own  debt,  and  subsequently  to 
the  testator's  death,  it  was  held  by  the  court,  that  it  would  neither  support 
the  counts  laying  a  promise  by  the  testator,  nor  those  charging  the  execu- 
tors in  their  representative  capacity.  In  the  subsequent  case  of  Slater  v. 
Lawson,  1  Barn.  &  Ad.  396,  the  same  principles  were  applied,  and  it  was 
again  determined,  that  a  payment  made  by  the  executor  of  a  deceased  co- 
contractor,  would  not  take  the  case  out  of  the  statute  of  limitations,  as  against 
another  party  jointly  liable,  upon  the  same  contract.  The  same  point  was 
decided  in  the  case  of  Hathaway  v.  Haswell,  9  Pick.  42,  although  upon 
reasons  somewhat  different,  and  not  altogether  consistent  with  the  previous 
decision  of  the  court  in  Baxter  v.  Penniman,  8  Mass.  133. 

In  the  previous  case  of  Pittam  v.  Foster,  1  B.  &  C.  248,  it  had  been  still 
more  unequivocally  declared  by  the  King's  Bench,  than  in  the  cases  last 
cited,  that  to  render  a  defendant  liable,  where  the  statute  of  limitations 
would  otherwise  operate  as  a  bar,  evidence  must  be  given  from  which  a 
promise  could  be  proved  or  implied,  not  varying  from  that  laid  in  the  decla- 
ration. An  action  having  been  brought  against  a  husband  and  wife,  and 
one  Foster,  on  a  promise  averred  to  have  been  made  by  Foster  and  the  wife, 
before  coverture,  it  was  decided,  that  evidence  of  an  acknowledgment  by 
Foster,  after  the  marriage,  would  not  support  the  declaration.  It  was  held 
by  tbe  court,  that  if  any  promise  were  thence  to  be  implied,  it  must  of 
course  be  a  promise  by  the  parties  existing  at  the  time  when  the  acknow- 
ledgment was  made,  and  therefore,  if  considered  as  the  undertaking  of  the 
husband,  it  was  bad  for  variance,  and  if  treated  as  that  of  the  wife,  void  as 
made  by  a  feme  covert.  Upon  the  same  course  of  reasoning,  and  under  a 
similar  state  of  facts,  the  Supreme  Court  of  Pennsylvania  held,  in  Kline 
V.  Guthart,  2  Penn.  Rep.  290,  that  where  the  statute  of  limitations  had 
been  pleaded,  to  a  declaration  upon  promises  by  a  woman  before  marriage, 
an  express  undertaking  for  payment  by  her  husband  during  coverture,  could 
not  be  given  in  evidence  after  his  death,  to  support  the  declaration. 


538  smith's  leading   cases. 

It  is  equally  well  settled,  that  although  a  part  payment  of  a  debt  admits 
its  existence  as  a  subsisting  obligation,  and  will  therefore  be  sufficient  to 
take  it  out  of  the  statute,  yet  that  it  has  no  greater  effect  than  any  other 
unqualified  acknowledgment,  and  must  therefore  be  connected  by  sufficient 
evidence,  both  with  the  persons  charged  in  the  suit,  and  the  claim  sought  to 
be  enforced.  On  this  head,  the  law  was  distinctly  defined  by  Lord  Abinger 
in  the  case  of  Waugh  v.  Cope,  6  M.  &  W.  824.  The  rule  as  adopted  in 
all  the  courts  was  there  declared  to  be  "  that  the  payment  must  appear, 
either  by  the  declarations  or  acts  of  the  party  making  it,  or  by  the  appro- 
priation of  the  party  in  whose  favour  it  is  made,  to  be  in  part  payment  of 
the  debt  in  question.  If  it  stands  ambiguous,  whether  it  be  part  payment 
of  an  existing  debt,  or  payment  generally,  without  admission  of  any  greater 
debt  as  due  to  the  party  :  if  it  may  have  been  made  by  the  party  paying 
in  reduction  of  an  account  due  to  himself,  or  intended  to  satisfy  the  whole 
of  the  demand  against  him,  then  it  is  not  sufficient  to  bar  the  statute  of  lim- 
itations." 

This  opinion  was,  it  is  true,  delivered  subsequently  to  the  statute  9  Geo. 
4,  c,  14  ;  but  that  enactment  appears  rather  to  change  the  medium  of  the 
proof  of  payment,  than  its  nature  or  application. 

The  extent  and  bearing  of  the  doctrine  thus  declared  by  Lord  Abinger  is 
strongly  illustrated  by  the  case  of  Linsell  v.  Bousor,  2  Bing.  N.  C.  241. 
The  defendant  had  there  given  a  sum  of  money  to  a  party  acting  as  his 
agent,  with  instructions  not  to  pay  it  to  the  plaintiff",  unless  the  latter  would 
receive  in  full  of  the  demand,  but  the  agent  disregarded  his  instructions, 
and  took  a  receipt  at  the  time  of  the  payment,  in  which  it  was  stated  to  be 
merely  on  account.  Under  these  circumstances  it  was  held,  that  as  there 
was  no  intention  on  the  part  of  the  defendant  to  admit  his  liability  for  the 
rest  of  the  debt,  and  the  authority  which  he  gave  had  been  exceeded,  the 
payment  could  not  be  relied  on  as  evidence,  for  the  purpose  of  taking  the 
case  out  of  the  statute.  Upon  the  same  general  principle,  it  is  necessary, 
not  only  to  show  a  payment  or  acknowledgment  of  the  debt  by  the  defend- 
ant, but  that  it  was  made  by  him  in  the  character  in  which  he  is  sued  ;  and 
consequently,  in  an  action  against  an  executor,  the  acts  and  admissions 
relied  on  to  take  the  case  out  of  the  statute,  must  appear  to  have  been  in  his 
representative  character.  Scholey  v.  Walton,  12  M.&  W.  510.  Larrason 
V.  Lambert,  7  Halsted,  255. 

The  interpretation  given  to  the  statute  9  Geo.  4,  c.  14,  in  Willis  v.  New- 
ham,  supra,  page  528,  has  been  confirmed  by  several  subsequent  decisions. 
Maghee  v.  O'Neill,  7  M.  &  W.  531.  Bayley  v.  Ashton,  4  Per.  &  p.  204. 
In  the  case  of  Eastwood  v.  Saville,  9  M.  &  W.  615,  the  part  payment 
was  sought  to  be  proved  by  an  endorsement  to  that  efTect,  in  the  handwriting 
of  the  defendant,  on  the  back  of  the  instrument  on  which  suit  was  brought ; 
but  it  was  held  that  it  was  inadmissible  under  the  statute,  which  expressly 
declares,  that  no  such  memorandum,  made  by  or  on  behalf  of  the  person  to 
whom  payment,  is  made,  shall  be  received  as  proof  of  such  payment,  for  the 
purpose  of  preventing  the  operation  of  the  statute.  It  has  been  decided  in 
Pennsylvania,  that  an  endorsement  of  this  sort,  even  where  made  by  the 
plaintiff",  is  good  evidence  at  common  law  for  him,  to  prove  the  fact  of  part 
payment,  since  it  is  part  of  the  res  gestae,  and  against  the  interest  of  the  party 
by  whom  it  is  made.     Adams  v.  Seitzinger,  1  AV.  &   S.  243.     The  law 


WHITCOMB    V.     WHITING.  539 

was  held  the  same  way  in  the  cases  of  Roseboom  v.  Billington,  17  John- 
son, 182,  and  Clapp  v.  Ingersoll,  2  Fairfield,  83.  But  it  is  admitted,  that 
the  endorsement  must  be  shown  to  have  been  written  before  the  bar  of  the 
statute  attached  ;  since  otherwise  this  construction  of  the  law  would  put  it 
in  the  power  of  the  plaintiff' to  manufacture  evidence  for  himself,  Cramer's 
Estate,  5  W.  &  S.  331.  And  in  Whitney  v.  Bigelovv,  4  Pick.  119,  and 
Taylor  v.  McDonald,  2  S.  Ca.  Constitutional  R.  178,  it  was  held,  that  the 
naked  fact  of  such  an  indorsement,  at  whatever  time  made,  was  not  admis- 
sible inevidence,  for  any  purpose  whatever. 

In  the  course  of  the  decisions  sustaining  Willis  v.  Newham,  it  was  more 
than  once  intimated,  that  the  decision  there  made  went  further  than  the 
courts  would  be  disposed  to  go  again,  were  the  matter  res  Integra.  A  similar 
point  was  raised  on  the  recent  case  of  Williams  v.  Godley,  9  Metcalf,  482, 
under  the  enactment  of  the  Revised  Statutes  of  that  state,  c.  120,  §  17, 
which  is  similar  to  the  9  Geo.  4  ;  and  it  was  decided,  that  as  the  act  did  not 
require  the  evidence  of  payment  to  be  in  writing,  it  might  be  established  by 
proof  of  an  oral  admission  by  the  defendant ;  although,  had  the  admission 
been  of  the  debt  itself,  it  would  have  been  inoperative,  unless  in  writing. 
This  decision,  as  compared  with  Willis  v.  Newham,  appears  to  be  sounder 
law,  since  the  object  of  the  statute  probably  was  to  interpose  a  defence 
against  admissions  of  the  debt,  extorted  by  surprise  from  the  defendant, 
while  an  admission  of  payment  can  rarely  be  made  when  such  has  not 
been  the  fact. 

It  might  have  been  supposed,  that  the  authority  of  the  cases  cited  above, 
was  sufficient  fully  and  expressly  to  establish,  that  where  the  statute  of  lim- 
itations has  taken  effect  upon  the  original  cause  of  action,  the  plaintiff' must 
support  his  claim  by  evidence  of  a  new  promise  within  six  years,  and  that 
such  promise  must  accord  with  the  averments  of  the  declaration,  and  appear 
to  have  been  made  between  the  parties  therein  set  forth,  or  by  virtue  of 
some  authority  from  them.  The  case  of  Whitcomb  v.  Whiting,  is,  how- 
ever, in  direct  opposition  to  this  doctrine,  since  there  the  acts  of  one  party, 
were  allowed  to  establish  a  liability  against  another,  without  any  proof  of 
authorilj'  from  the  latter,  while  all  the  cases  above  cited,  proceeded  upon 
the  ground,  that  to  take  a  case  out  of  the  statute,  there  must  be  evidence 
whence  to  infer  a  promise  by  the  party  sought  to  be  charged,  corresponding 
with  that  laid  in  the  declaration.  But  in  truth,  Whitcomb  v.  Whiting  did 
not  recognize  any  necessity  for  a  new  promise,  but  was  adjudged  upon 
another,  and  rival  notion,  the  influence  of  which  is  still  felt  in  this  branch 
of  the  law,  that  to  prevent  the  operation  of  the  statute,  it  was  only  necessary 
to  show  the  continuance  of  the  debt,  by  any  means  whatever.  Of  course 
under  this  view,  although  an  acknowledgment  by  the  defendant  or  his 
agent,  may  be  the  best  evidence  for  that  purpose,  it  was  impossible  to  reject 
testimony  derived  from  any  other  source,  and  a  payment  by  a  co-contractor, 
while  insufficient  to  establish  a  promise  by  the  defendant,  was  yet  proper 
to  be  left  to  the  jury,  as  a  fact  from  which  they  might  find  a  still  subsisting 
debt.  Whitcomb  v.  Whiting,  has  been  followed  in  England,  by  a  series  of 
cases  to  the  same  effect,  and  no  principle  appears  better  established  in  Eng- 
lish law,  at  the  present  day,  than  that  any  thing  amounting  to  an  unquali- 
fied acknowledgment  of  the  debt,  by  one  of  several  joint  contractors,  though 
without  proof  of  authority  from  them,  and  after  the  bar  of  the  statute  has 


540 


SMITHS    LEADING    CASES. 


taken  effect,  will  take  the  case  out  of  the  statute  as  against  the  rest,  except 
where  restrained  in  its  effect  by  statutory  enactments.  Channell  v.  Ditch- 
burn,  5  M.  &  W.  494.  Goddard  v.  Ingram,  3  Q.  B.  399.  Dowling  v. 
Ford,  11  M.  &  AV.  328. 

It  would  therefore  appear,  that  with  regard  to  the  application  of  the 
statute  of  limitations,  there  exist  on  the  other  side  of  the  Atlantic  two  dif- 
ferent principles.  The  decision  in  Whitcomb  v.  Whiting,  cannot  be  recon- 
ciled with  the  idea  of  a  new  promise,  and  that  of  Green  v.  Crane,  is  equally 
irreconcilable  with  that  of  a  mere  acknowledgment,  since,  as  stated  above, 
it  was  there  held,  that  even  when  proceeding  from  the  debtor  himself,  it 
was  not  sufficient  to  support  a  recovery,  unless  made  to  the  party  who 
claimed  its  benefit  as  a  promise,  in  the  declaration.  Under  these  circum- 
stances, the  courts  of  the  United  States  have  been  obliged,  either  to 
follow  these  different  and  inconsistent  sets  of  cases,  without  questioning 
their  authority,  or  adhering  to  the  principle  declared  in  one,  entirely  to  reject 
the  other.  The  former  course  would  seem  to  have  been  adopted  in  New 
York,  Massachusetts,  Virginia,  and  South  Carolina,  and  with  one  exception, 
in  the  States  of  New  England;  the  latter  in  Pennsylvania  and  New  Hamp- 
shire, and  the  Supreme  Court  of  the  United  Slates. 

In  consequence  of  this,  it  has  happened,  that  the  courts  of  this  country 
have  differed  more  widely  in  their  decisions,  upon  the  principle  involved  in 
the  case  of  Whitcomb  v.  Whiting,  than  upon  any  other  question  of  law, 
and  that  there  may  be  found  in  the  different  states  of  the  Union,  two  oppo- 
site classes  of  determinations,  by  one  of  which  the  authority  of  the  judg- 
ment there  given  is  supported,  by  the  other  overruled. 

In  the  state  of  New  York,  the  doctrine  is  well  established,  that  a  mere 
acknowledgment  by  one  partner,  of  the  existence  of  a  debt  as  due  from  the 
firm,  although  made  subsequently  to  the  dissolution  of  the  partnership,  is 
sufficient  to  take  an  action  brought  to  recover  the  debt,  out  of  the  reach  of 
the  statute  of  limitations.  Smith  v.  Ludlow,  6  Johns.  269.  Johnson"/. 
Beardsiee,  15  Johns.  3.  Patterson  v.  Choate,  7  Wend.  443.  Roosvelt  v. 
Mark,  6  Johns.  Chan.  Rep.  292.  The  law  is  the  same  in  Massachusetts. 
White  V.  Hale,  3  Pick.  291.  And  it  will  equally  apply  in  the  case  of  a 
joint  promise,  where  no  partnership  has  existed,  and  when  the  party 
making  the  acknowledgment  is  principal,  and  the  defendant  charged  under 
it,  has  merel}'  promised  as  a  surety.  Frye  v.  Barker,  4  Pick.  382.  But  in 
Goddard  v.  Ingram,  it  was  determined  that  the  effect  of  such  payments  in 
reviving  the  obligation  of  the  defendant,  was  not  impaired  by  showing  that 
they  were  small  in  amount  and  merely  made  in  concert  with  the  plaintiff  with 
the  view  of  depriving  the  defendant  of  the  protection  of  the  statute.  The 
same  point  has  since  been  similarly  decided  in  an  elaborate  opinion  delivered 
by  Shaw,  C.  J.,  in  the  case  of  Sigourney  v.  Drury,  14  Pick.  387.  Of  course 
where  the  mere  acknowledgment  has  the  effi^ct  of  reviving  the  remedy,  a 
part-payment,  as  the  most  unequivocal  form  of  acknowledment,  will  have 
the  same  result.  Hunt  v.  Bridgham,  2  Pick.  501.  Sigourney  v.  Drury, 
14  Pick.  387.  In  Ilsley  v.  Jewett,  this  effect  was  decided  to  follow,  where 
one  of  several  co-contractors,  gave  a  promissor)'  note  for  part  of  the  debt, 
which  was  held  to  amount  to  part  payment.  The  courts  of  Maine,  Ver- 
mont, Connecticut,  Virginia,  and  South  Carolina,  coincide  in  their  decisions 
on  this  subject,  with  those  of  New  York  and  Massachusetts.     Gelchill  v. 


W  H  I  T  C  0  M  B     V.     W  H  I  T  I  N  G.  54  1 

Held,  7  Maine,  26.  Pike  v.  Warren,  15  Maine,  393.  Joslyn  v.  Smith, 
13  Vermont,  356.  Bound  v.  Lathrop,  4  Conn.  33.  Austin  v.  Bostwick,  9 
Conn.  503.  Shilton  v.  Cocke,  3  Munford,  311.  Beitz  v.  Fuller,  1  MCord, 
541,  2  Bay,  533.  If  however,  there  be  any  thing  to  show  that  the  acknow. 
ledgement  was  fraudulent,  or  with  the  expectation  of  benefit  to  the  party 
making  it,  there  can  of  course  be  no  doubt,  that  the  presumption  which 
it  would  otherwise  raise,  is  rebutted.  Coit  v.  Tracy,  9  Conn.  4  ;  8 
Conn.  268. 

It  may  be  observed,  that  in  all  cases  where  the  admission  or  part-payment 
of  a  debt  has  been  subsequent  to  the  dissolution  of  a  partnership,  it  is  neces- 
sary to  prove  the  previous  existence  of  the  debt,  as  due  by  the  partnership, 
and  to  rely  upon  the  acknowledgment  merely  for  the  purpose  of  taking  the 
case  out  of  the  statute  of  limitations.  Any  other  construction  of  the  law, 
would  enable  one  partner,  not  merely  to  bind  the  rest,  with  regard  to  what 
are  shown  by  other  evidence  to  be  partnership  affairs,  but  to  create  a  new 
contract,  under  pretence  of  giving  effect  to  an  old  one.  Shilton  v.  Cocke, 
3  Munford,  311.  Smith  v.  Ludlow,  6  Johns.  2G9  ;  Hackley  v.  Hastie,  3 
Johns.  537.  Of  course  the  same  law  must  hold  good,  where  the  debt  has 
been  merely  joint,  independently  of  partnership,  and  in  either  case,  a  sub- 
sequent acknowledgment,  as  against  any  other  than  the  parly  by  whom  it 
was  made,  will  serve  to  take  the  debt  out  of  the  statute,  but  will  not  serve 
to  prove  its  existence. 

The  only  reason  upon  which  the  cases  above  cited  can  be  thought  to  pro- 
ceed, consistently  with  the  idea  of  a  new  promise,  is  the  agency  for  the 
whole  firm  which,  notwithstanding  the  dissolution  of  a  partnership,  still 
remains  in  each  partner,  as  it  respects  all  matters  which  came  within  the 
scope  of  the  partnership  business  during  its  continuance.  But  although 
the  power  of  parties  liable  under  a  joint  contract,  must  necessarily  extend 
to  increasing  or  diminishing  that  liability  by  their  payments  or  admissions, 
yet  whether  they  are  mere  co-contractors,,  or  have  formerly  been  partners, 
it  is  evident  that  they  can  have  no  implied  authority  to  form  a  new  con- 
tract, imposing  any  new  liability  on  each  other.  It  follows,  that  if  a  new 
promise  be  held  necessary  to  take  the  case  out  of  the  statute  of  limitations, 
an  admission,  when  made  by  one  of  the  parties  jointly  liable  on  a  debt, 
should  not  be  received  in  evidence  to  support  a  declaration  against 
the  rest. 

Under  this  view  of  the  subject,  it  was  decided  by  the  Supreme  Court  of  the 
United  Slates,  in  the  case  of  Bell  v.  Morrison,  1  Peters,  361,  that  although 
the  authority  of  a  partner  extended  to  any  modification  or  settlement  of  the 
liability,  growing  out  of  the  promise  to  pay  implied  by  law,  whenever  a 
debt  exist  between  two  parties,  yet  that  it  could  not  be  held  to  apply,  where 
it  is  shown  that  this  legal  promise  has  been  abrogated  by  the  statute,  and 
that  if  the  action  be  supported  at  all,  it  must  be  supported  on  a  new  contract, 
although  on  the  old  consideration.  The  previous  case  of  Clementson  v. 
Williamson,  8  Cranch,  72,  had  gone  nearly  as  far,  since  an  acknowledgment 
by  one  partner,  that  the  debt  was  due,  was  held  not  to  bind  the  other  ; 
although  the  court  there  confined  the  ground  of  their  decision  to  a  single 
point,  that  in  such  cases  there  could  be  no  positive  knowledge,  whether  the 
other  partner  had  discharged  the  debt  or  not,  and  consequently,  that  no 
promise   to   pay  could  be    implied   against  him.     This,  of    course,   left 


542  SMITHS     LEADING     CASES. 

untouched  the  question,  how  far  an  express  promise  by  one  partner,  to  pay 
a  debt  shown  to  be  due  from  both,  would  prevent  the  statute  from  operating 
as  a  bar. 

If  it  be  admitted  that  to  take  a  case  out  of  the  statute  of  limitations,  there 
must  be  a  new  promise,  express  or  implied,  the  reasoning  of  these  cases 
would  seem  to  be  quite  conclusive  against  the  right  of  one  joint  contractor, 
to  reniove  the  contract,  from  the  effect  of  the  statutory  bar  in  protecting 
another. 

The  law  of  New  Hampshire  was  held  in  the  recent  case  of  The  Exeter 
Bank  v.  Sullivan,  6  New  Hamp.  Rep.  137,  to  be  in  accordance,  on  this 
subject,  with  the  decision  of  the  Supreme  Court  of  the  United  States,  in  the 
case  of  Bell  v.  Morrison  ;  and  in  the  able  opinion  there  delivered  by  Rich- 
ardson, C.  J.,  it  was  urged  with  great  force  of  argument,  that  although 
"  where  one  joint  debtor  admits  a  debt,  and  says  nothing  to  the  conlrarj^  it 
may  be  inferred  from  his  silence,  that  he  is  willing  to  pay,  yet  that  it  can 
furnish  no  ground  for  presuming,  that  another  who  is  absent,  is  also 
willing.  "  If  this  reasoning  have  the  soundness  which  it  appears  to  possess, 
it  would  seem  nearly  conclusive  against  the  validity  of  the  decisions  made 
on  this  subject,  in  New  York  and  Massachusetts,  since  the  courts  have 
there  fully  admitted,  that  independent  of  the  willingness  to  pa}',  implied 
by  the  unqualified  acknowledgment  of  a  debt,  when  proceeding  from  the 
defendant  himself,  no  new  promise  on  his  part  could  be  implied. 

The  Supreme  Court  of  Pennsylvania,  at  an  early  period  adopted  the 
doctrine,  that  consistently  with  the  principles  of  pleading,  no  action  could 
be  maintained  to  recover  a  debt  barred  by  the  statute  of  limitations,  unless 
on  evidence  from  which  might  be  proved  or  implied,  a  new  promise  to  pay 
the  debt,  as  between  the  persons  set  forth  in  the  declaration  as  parties  to  the 
action.  Jones  v.  Moore,  5  Binney,  573.  In  accordance  with  this  vieAv  of 
the  law,  it  was  subsequently  declared,  in  Levy  v.  Cadet,  17  Sergeant  & 
Rawle,  126,  that  an  acknowledgment  made  by  one  partner,  will  not,  after 
the  dissolution  of  the  partnership,  render  the  other  liable  for  a  debt,  which 
would  otherwise  be  barred  by  the  statute.  The  most  remarkable  similarity 
will  be  found  to  prevail,  between  the  arguments  employed  Jby  the  judges 
who  delivered  the  nearly  simultaneous  decisions  in  the  cases  of  Levy  v. 
Cadet,  and  Bell  v.  Morrison,  although  it  does  not  appear,  that  either 
court  was  aware  of  the  course  pursued  by  the  other.  In  the  subsequent 
case  of  Searight  v.  Craighead,  1  Penn.  Rep.  135,  the  Supreme  Court 
of  Pennsylvania,  recognised  and  re-affirmed  these  cases;  and  the  doctrine 
which  they  advanced,  was  considered  as  settled  law  in  that  state. 

But  it  has  recently  been  held  by  that  tribunal,  that  every  partner- 
ship must  be  considered  as  continuing  with  regard  to  all  antecedent 
affairs  until  all  its  debts  were  settled,  and  its  accounts  closed  and  it 
was  consequently  determined  that  one  partner  had  as  full  power  to  give 
a  note  binding  the  firm,  in  consideration  of  a  partnership  debt  after  a 
dissolution  as  before,  Petriken  v.  Collier,  1  Barr,  247.  A  similar  point  had 
previously  been  decided  in  the  case  of  Davis  v.  Desauque,  5  Wharton, 
530,  where,  however,  the  partner  by  whom  the  note  was  given,  had  been 
entrusted  with  the  duty  of  winding  up  the  business  of  the  firm.  If  these 
decisions  are  inconsistent  with  the  language  held  by  the  same  court  in  Levy 
V.  Cadet,  and  Searight  v.  Craighead,  it  might  follow  on  the  ground  assumed 


W  H  I  T  C  O  M  B    V.     WHITING.  543 

in  them,  that  a  note  given  in  the  name  of  a  firm  after  it  had  been  dissolved, 
by  one  of  tiie  partners,  should  be  held  to  take  the  debt  for  which  it  was 
given  out  of  the  operation  of  the  statute  of  limitations,  as  against  all  ;  and 
such  was  the  point  actually  determined  in  Houser  v.  Irvine,  3  W.  &  S,  345. 

It  would  be  difficult,  to  find  stronger  evidence  of  the  inconsistencies 
into  which  the  courts  of  this  country  have  been  led,  by  closely  fol- 
lowing the  English  decisions,  than  is  afforded  by  the  opinion  delivered 
by  Shaw,  C  J.,  in  the  case  of  Sigourney  v.  Drury.  He  there  held,  that 
an  absolute  and  direct  acknowledgment,  would  not  prevent  the  effect  of 
the  statutory  bar,  if  accompanied  by  a  refusal  to  pay,  or  the  expression  of 
an  intent  to  insist  on  the  statute,  and  yet  determined  that  evidence  of  an 
acknowledgment  by  one  of  the  parties  to  a  contract,  although  at  most 
amounting  to  an  acknowledgment  by  the  others,  would  prevent  them  from 
availing  themselves  of  the  statute,  although  they  expressed,  in  the  most 
solemn  manner  possible,  their  intention  of  resorting  to  it  for  protection,  by 
placing  it  on  record  as  a  plea.  It  would  seem,  that  if  when  an  acknowledg- 
ment is  made  by  a  party  himself,  he  may,  by  accompanying  it  with  a  refu- 
sal to  pay,  prevent  the  effect  which  it  would  otherwise  have,  the  same 
result  must  follow  from  his  refusal  where  such  acknowledgment  is  made  for 
him  by  others,  and  if  so,  that  the  time  of  the  refusal  cannot  be  material, 
provided  that  it  follow  sufficiently  close  upon  notice  of  the  acknowledgment, 
to  rebut  the  presumption  of  assent,  and  of  consequent  liability,  which  might 
otherwise  arise.  Before  such  notice  has  been  received,  it  would  seem  incon- 
sistent with  justice,  to  deprive  the  party  by  the  admission  of  another,  of  a 
right  which  he  would  possess  had  the  admission  proceeded  from  himself. 
But  it  is  not  merely  with  regard  to  the  admissions  of  co-contractors,  that  the 
courts  of  Massachusetts  have  allowed  evidence  implying  a  promise,  by  one 
party,  to  be  received  without  proof  of  authority,  to  impose  a  liability  upon 
others;  since  they  have  repeatedly  held,  that  acknowledgments,  received  or 
given  by  executors,  were  sufficient  to  take  out  of  the  statute  a  cause  of  action 
arising  on  promises  which  were  laid  in  the  declaration,  as  made  by  or  to  the 
testator.  Baxter  v.  Penniman,  8  Mass.  133.  Emerson  v.  Thomas,  16 
Mass.  431.  Although  these  cases  are  perfectly  consistent  with  the  idea, 
that  upon  new  and  independent  evidence  of  the  existence  of  the  debt  within 
six  years,  there  may  be  a  recovery,  notwithstanding  the  statute,  yet  like 
those  resting  upon  the  authority  of  Whilcomb  v.  Whiting,  they  cannot  be 
reconciled  with  the  doctrine  which  requires  proof  of  a  new  promise,  by  and 
to  the  parties  in  the  declaration,  and  corresponding  with  that  on  which  it 
proceeds.  But  this  reasoning  only  applies,  where  an  acknowledgment  made 
by  or  to  the  executor,  is  given  in  evidence  under  a  count  merely  containing 
averments  of  promises,  by  or  to  the  testator.  Where  the  declaration  pro- 
ceeds on  a  promise  by  the  executor,  the  only  objection  to  a  recovery  upon 
proof  of  such  promise,  rests  upon  the  ground  of  defective  consideration. 

Although  it  may  be  considered  as  established  law,  that  nothing  short  of 
a  new  promise  will  remove  the  bar  of  the  statute  of  limitations,  there  would 
yet  seem  to  be  some  difficulty,  in  reducing  it  to  practice.  We  have  seen 
that  consistently  with  the  common  rules  of  pleading,  Avhich  do  not  admit 
the  introduction  of  any  cause  of  action  varying  from  that  in  the  declaration, 
when  the  promise  is  there  stated  to  have  been  between  certain  parties,  no 
evidence  can  be  received  under  a  plea  of  the  statute,  of  which  the  legal  effect 


544  smith's  leading  cases. 

can  only  be  to  prove  a  promise  by  others  ;  and  thus  even  a  direct  acknow" 
ledgment  of  a  debt  to  an  executor,  will  not  render  the  defendant  liable  on  a 
count  reciting  an  undertaking  to  the  testator.  But  it  is  obvious  that  a 
variance  will  as  much  exist,  where  a  departure  from  the  terms  or  nature  of 
the  contract  is  shown  by  the  evidence,  as  where  it  simply  tends  to  establish, 
that  such  contract  was  made  between  different  parties.  It  must  strictly 
pursue  the  declaration  on  all  material  points,  or  it  cannot,  with  propriety,  be 
received.  Now  there  seems  at  first  sight  some  difficulty  in  understanding 
how  in  accordance  with  these  principles,  a  new  promise  made  subsequently 
to  the  period  at  which  the  original  cause  of  action  accrued,  and  under  differ- 
ent circumstances,  as  must  be  the  case  where  it  is  intended  to  remove  the 
bar  of  the  statute,  can  ever  be  received  to  support  that  laid  in  the  declaration, 
from  which  it  thus  appears  to  vary.  But  where  the  plaintiff  declares  under 
the  common  counts  on  a  general  assumpsit,  the  difficulty  is  rather  nomi- 
nal than  real.  The  promise  declared  on  in  that  case,  is  a  legal  promise, 
which  is  not  in  reality  tied  down  to  any  circumstances  of  time  or  place, 
and  which,  for  its  support,  only  requires  evidence  of  two  things;  that 
a  liability  for  the  debt  existed  at  the  time  of  the  purchase  of  the  writ,  and 
that  such  liability  arose  on  the  consideration  slated  in  the  declaration.  Now 
both,  these  requisitions  are  satisfied,  by  proving  the  facts  constituting  the 
consideration  which  originally  created  the  debt,  and  showing  that  the 
defendant  was  liable  to  pay  it,  whether  in  consequence  of  a  new  undertak- 
ing or  otherwise,  at  the  time  of  the  commencement  of  the  suit.  Upon 
evidence  of  this  the  law  raises  a  promise,  which  necessarily  accords  with 
that  laid  in  the  count. 

More  difficulty  exists  in  applying  these  principles,  to  those  cases  in  which 
a  new  promise  is  brought  forward  to  support  an  action  upon  a  bill  of 
exchange  or  promissory  note,  where  the  statute  of  limitations  has  been 
pleaded,  and  the  circumstances  will  not  permit  a  recovery  on  the  common 
counts.  It  may,  however,  be  observed,  that  even  there,  after  stating  the 
express  promise,  the  declaration  goes  on  to  aver  a  legal  liability  resulting 
therefrom,  and  another  promise  which  the  law  presumes  to  be  made  as 
the  consequence  of  this  liability,  but  which  has  no  existence  in  point  of 
fact.  Griffith  v.  Roxborough,  2  M.  &  W.  734 ;  Stericker  v.  Barker,  9  Id. 
321. 

Now  in  barring  a  recovery  upon  the  express  promise,  the  law  destroys 
this  liability,  and  the  implied  resulting  promise,  but  the  note  still  remains, 
if  unpaid,  as  a  good  moral  consideration  to  support  a  new  contract  for  its 
discharge.  It  would,  therefore  seem,  that  evidence  of  an  undertaking  bj'' 
the  defendant  to  that  effect,  by  re-creating  in  him  a  liability  to  pay  the 
amount  of  the  note,  may  be  given  in  evidence  to  support  the  averments  of 
the  declaration,  and  the  legal  promise  therein  laid,  without  amounting  to  a 
variance  from  the  cause  of  action,  as  originally  stated. 

When,  however,  the  breach  complained  of,  is  the  failure  to  comply  with 
an  express  particular  promise  such  as  the  law  cannot  imply,  and  which  must 
therefore  be  proved  actually  to  have  been  made  by  the  defendant,  this  reason- 
ing does  not  apply  ;  and  it  would  seem  that  without  a  declaration  specially 
adapted  to  the  circumstances,  evidence  of  a  new  promise,  whether  express 
or  implied  from  an  acknowledgment,  must,  agreeably  to  the  principle  implied 


WHITCOMB     V.    WHITING.  545 

by  the  decisions  of  Green  v.  Crane  and  Jones  v.  Moore,  be  rejected  as  bad  for 
variance  from  the  count. 

Thus  on  a  declaration,  averring  an  undertaking  by  the  defendant  to  erect 
a  dwelling-house,  to  be  built  in  a  particular  manner,  and  a  breach  by  failure 
to  comply  with  this  promise,  and  the  erection  of  a  building  in  a  different 
and  inferior  manner,  it  is  difficult  to  understand. how  an  acknowledgment  by 
the  defendant  that  if  any  thing  were  due  to  the  plaintiff  he  would  pay  it, 
although  sufficient  in  an  action  of  assumpsit  relying  on  a  legal  promise,  to 
take  the  case  out  of  the  statute  of  limitations,  could  be  given  in  evidence 
without  a  count  specially  adapted  to  the  occasion.  Even  where  an  express- 
promise  for  the  payment  of  money  is  relied  on,  the  same  difficulty  must 
exist ;  and  it  would  seem,  that'  under  a  declaration  on  a  promissory  note, 
simply  stating  it  to  have  been  made  on  a  day  certain,  and  the  express  pro- 
mise therein  by  the  defendant  to  pay,  evidence  could  not  be  received  to 
show  a  new  and  subsequent  undertaking  on  his  part,  for  the  purpose  of 
bringing  the  cause  of  action,  within  six  years  of  the  time  of  suit  brought. 
As  in  that  case  the  plaintiff  would  seek  to  recover,  not  on  a  legal  promise, 
which  may  in  all  cases  be  supported,  by  proof  of  matter  sufficient  to  call  it 
into  being  at  any  time  before  the  issuing  oC  the  writ,  whether  subsequent  to 
the  consideration  or  not,  but  on  an  express  promise  averred  to  have  been 
made  in  certain  terms,  and  at  a  particular  time,  it  appears  evident  that 
no  new  and  distinct  contract,  could  be  received  in  evidence  under  the 
declaration. 

Although  the  decisions  of  the  courts,  in  rejecting  evidence  of  a  new  pro- 
mise, when  given  for  the  purpose  of  supporting  a  recovery,  as  against  a 
plea  of  the  statute,  have  more  frequently  proceeded  upon  the  ground  of  a 
variance  as  to  the  parties,  than  the  terms  of  the  contract,  yet,  that  an  objec- 
tion arising  on  the  latter  point  will  be  fatal,  cannot  be  doubted  on  principle, 
and  would  seem  to  bo  sufficiently  established  by  authority.  Thus  in  the 
case  of  Lonsdale  v.  Brown,  3  Washington,  C  C.  R.  407,  it  was  held,  that 
where  the  new  promise  varies  from  the  terms  of  the  original  contract  on 
which  the  action  is  brought,  it  cannot  be  given  in  evidence,  "  because  the 
proof  would  not  correspond  with  the  allegation."  It  was  therefore  decided, 
that  under  a  declaration  by  the  payee  against  the  drawer  of  a  bill  of 
exchange,  evidence  of  a  conditional  promise  of  payment,  although  coupled 
with  proof  of  the  performance  of  the  condition,  could  not  be  received,  even 
to  take  the  case  out  of  the  statute  of  limitations,  since  the  promise  alleged 
in  the  count  was  absolute,  not  conditional. 

But  the  general  doctrine  of  law  is  that  in  all  cases  where  a  conditional  or 
executory  promise  has  been  completely  fulfilled,  it  becomes  absolute,  and 
may  be  declared  on,  as  if  the  condition,  whether  express  or  implied,  had 
never  existed.  Stone  v.  Rogers,  2  M.  &  W.  443.  Thus  it  is  the  practice 
of  every  day  to  sustain  the  indebitatus  counts,  where  a  future  or  contingent 
agreement  has  ended  in  imposing  a  naked  debt  or  obligation  for  the  payment 
of  money.  It  may  therefore  be  doubted,  whether  the  distinction  taken  in 
Lonsdale  v.  Brown,  is  capable  of  being  supported.  The  true  rule  as  to  the 
evidence  necessary  to  support  a  traverse  of  a  plea  of  the  statute  of  limitations, 
without  producing  variance,  was  recently  stated  by  Alderson,  Baron,  with 
great  precision,  in  the  case  of  Flail  v.  Prendergrass,  14  M.  &  W.  74 L  746 
who  there  said,  "the  plaintiff  must  prove  an  acknowledgment  conformable 

Vol.  I.— 35 


546  smith's   leading   cases. 

to  the  promise  laid  in  the  declaration,  viz.,  either  an  unconditional  acknow- 
ledgment, from  which  a  promise  to  pay  is  inferred,  or  an  acknowledgment 
subject  to  a  condition  Avhich  has  been  performed,  and  which  thus  becomes 
absolute,  and  so  equally  maintaining  the  promise  in  the  declaration."  The 
rule  thus  laid  down  is  obviously  applicable  to  actions  upon  negotiable  paper, 
as  well  as  to  those  in  the  ordinary  forms  of  indebitatus  assumpsit,  since  in  both 
the  promise  is  one  implied  by  law  from  the  antecedent  state  of  facts  set  forth 
in  the  declaration,  and  is  averred  to  be  for  payment  on  request.  Such  was 
in  fact,  the  decision  of  the  Court  of  Exchequer,  in  the  case  of  Irving  v. 
Veitch,  3  M.  &  W.  90 ;  it  was  held  that  in  an  action  on  a  promissory 
note,  evidence  of  a  conditional  agreement  was  admissible  to  support  a 
traverse  of  a  plea  of  the  statute  of  limitations,  although  it  was  strenuously 
contended  for  the  defence  that  it  was  inconsistent  with  the  demand  as  set 
forth  by  the  plaintiffs,  and  that  in  order  to  support  a  recovery  under  such 
circumstances,  the  declaration  should  have  been  special.  The  same  point 
again  arose  in  the  recent  case  of  Humphreys  v.  Jones,  14  M.  &  W.  1,  and 
was  decided  in  the  same  way. 

But  in  the  case  of  Boydell  v.  Drummond,  2  Campbell,  157,  it  was  ruled  by 
Lord  Ellenborough,  on  the  same  ground  of  variance,  that  from  the  acknow- 
ledgment of  a  debt  within  six  years,  there  might  be  implied  a  new  promise 
to  pay  it,  "but  that  no  such  effect  could  be  given  to  an  acknowledgment, 
where  the  cause  of  action  arose  from  the  doing  or  omitting  to  do  some  act,  at 
a  particular  moment,  in  breach  of  a  contract." 

In  the  decision  of  Wetzell  v.  Bussard,  11  Wheaton,  315,  this  question 
was  brought  before  the  Supreme  Court  of  the  United  States,  by  an  attempt 
to  make  the  defendant  in  an  action  of  assumpsit,  liable  for  a  breach  of  con- 
tract, in  not  delivering  gunpowder,  which  had  occurred  more  than  six  years 
before  the  issuing  of  the  writ,  by  proving  that  within  that  time,  he  had 
acknowledged  himself  liable  to  the  plaintiff'in  damages.  Marshall,  C.  J., 
in  delivering  the  opinion  of  the  court,  rested  his  decision  upon  the  ground 
that  the  acknowledgment  was  not  sufficiently  explicit,  but  seemed  to  be  of 
opinion,  that  upon  principle,  and  the  authority  of  Lord  Ellenborough,  as 
cited  above,  it  could  not  in  any  case  have  supported  a  recovery,  since  the 
promise  it  implied,  being  to  make  compensation  to  the  plaintiff" in  damages, 
for  not  having  delivered  the  gunpowder,  necessarily  varied  from  that  laid  in 
the  declaration,  which  was  an  undertaking  for  a  future  delivery. 

It  may  be  observed  that  if  the  final  effect  of  the  doctrine  of  a  new  promise 
as  deduced  from  principle,  and  applied  in  these  decisions,  should  be  to  pre- 
vent a  recovery  when  more  than  six  years  have  elapsed  from  the  occurrence 
of  the  cause  of  action,  in  all  cases  where  it  does  not  merely  arise  from  the 
non-payment  of  money,  it  would  serve  to  place  the  law  on  a  more  consistent 
footing,  than  has  perhaps,  hitherto  been  deemed  practicable,  by  making  the 
capacity  of  an  acknowledgment  to  prevent  the  bar  of  the  statute,  depend 
upon  the  character  of  the  subject  to  which  it  is  applied,  rather  than  upon  the 
form  of  the  action.  It  has  long  been  settled,  that  where  the  suit  is  brought 
in  case  to  recover  for  a  fraud,  even  when  committed  in  forming  or  violating 
a  contract,  no  admission  of  liability  on  the  part  of  the  defendant,  can  prevent 
him  from  taking  advantage  of  a  plea  of  the  statute  of  limitations.  Oothout  v. 
Thompson,  20  Johnson,  278.  Of  course  the  same  law  applies  to  actions  of 
trespass.     Hurst  v.  Parker,  1  Barn.  &  Aid.  92.  H. 


B  R  I  S  T  0  W     V.     WRIGHT.  547 

*BIIIST0W  V.  WRIGHT.  [-324] 


EASTER,  13  GEO.  3. 

[reported,  dougl.  665.] 

In  an  action  against  the  sheiiff  for  taking  goods  without  leaving  a-year's  rent,  the  declara- 
tion needs  not  state  all  the  particulars  of  the  demise,  but  if  it  does,  and  they  are  not 
proved  as  stated,  there  shall  be  a  nonsuit. 

In  last  Hilary  Term,  on  Thursday,  the  25th  of  January,  Lee  obtained  a 
rule  to  show  cause  why  the  verdict  which  had  been  found  for  the  plaintiff 
should  not  be  set  aside,  and  a  new  trial  granted,  or  a  nonsuit  entered. 

This  was  an  action  on  the  case,  against  the  defendants  as  sheriff  of  Mid- 
dlesex,-}-  on  the  statute  of  6  Ann.  c.  14,  s.  1,  for  taking  the  goods  of  one 
Pope^in  execution,  in  a  house  let  from  year  to  year,  by  the  plaintiff  to  Pope, 
without  paying  or  contenting  him  for  a  year's  rent  then  due,  and  of  which 
the  defendants,  before  the  removal  of  the  goods,  had  notice. 
The  declaration  stated  the  demise,  as  follows  : 

"  The  said  plaintiff,  on,  &c.  demised  to  one  Benjamin  Pope,  a  certain 
messuage,  &c.,  to  have  and  to  hold  unto  the  said  Benjamin,  from  the  feast 
of  St.  Michael,  then  next  following,  for  and  during  the  term  of  one  year  from 
thence  next  ensuing,  and  fully  to  be  complete  and  ended,  and  so,  from  year 
to  year,  for  so  long  as  it  should  please  the  plaintiff,  and  the  said  Benjamin, 
yielding  and  paying,  therefore,  yearly  and  every  year  during  the  said  term, 
unto  the  plaintiff,  the  yearly  rent  or  sura  of,  &c.,  by  four  even  and  equal 
quarterly  payments  ;  to  wit,  at  the  feast  of,  &c," 

The  principal  witness  called  on  the  part  of  the  plaintiff  was  Pope  himself; 
who  proved,  that  the  plaintiff  let  the  *house  to  him,  by  parole,  for  a  r^oocT 
year,  and  that  there  was  no  stipulation  about  any  time  or  times  for  L  -' 
the  payment  of  the  rent. 

It  was  contended  at  the  trial,  (which  came  on  before  Lord  Mansfield, 
at  the  sittings  for  Middlesex,)  that,  as  the  plaintiff  had  laid  a  demJse  with  a 
reservation  of  rent  payable  quarterly,  he  was  bound  to  prove  it  exactly  as 
laid ;  and  that,  having  failed  in  that  proof,  he  ought  to  be  nonsuited.  His 
lordship  overruled  the  objection,  being  then  of  opinion,  that  enough  of  the 
demise  as  laid  had  been  proved  to  entitle  the  plaintiff  to  his  action.  The 
present  rule  was  moved  for,  on  the  ground  of  a  misdirection. 

On  Thursday,  the  3rd  of  May,  the  Attorney-General  and  Dunning  showed 
cause,  and  urged,  that  the  contract  was  not  the  gist  of  the  action  ;  the  mate- 
rial part  was,  that  a  year's  rent  was  in  arrear,  and  that  having  been  proved, 
the  plaintiff  had  shown  enough  to  entitle  himself  to  a  verdict. 

fVood,  on  the  other  side,  insisted,  that,  as  the  plaintiff  had  set  forth  the 
particulars  of  the  contract,  he  was  bound  to  prove  them  as  laid  ;  and  for  this 
he  cited  an  anonymous  case  in  Lord  Raymond,  where,  a  promise  being  laid 
"  to  deliver  good  merchandiseable  wheat,"  and  the  evidence  being  of  a  pro- 

(t)  The  two  Sheriffs  of  London  make  one  Sheriff  ©f  Middlesex.  Barker  v.  Weeden,  4 
Tyrwh.  861. 


548  smith's  leading   cases. 

mise  to  deliver  "good  second  sort  of  wheat,"  Lord  Holt  held  the  variance  to 
be  fatal,  and  nonsuited  the  plaintiff;(«)  the  King  v.  Nudigate,(6)  where, 
upon  a  traverse  of  an  office  found,  the  issue  being,  whether  J.  S.  devised 
"  to  J.  N.  and  his  heirs"  or  not,  and  the  jury  having  found  that  "  J.  S," 
devised  "to  A.  for  years,  remainder  to  J.  N.  in  fee,"  the  court  adjudged 
"  quod  non  devisavit  modo  et  forma  ;"  Sands  and  Tash  v.  Ledger,(c)  where, 
in  action  of  debt  for  rent,  the  plaintiffs  declared  on  a  demise  "for  15/.  rent 
per  annum,"  under  a  power  "to  make  leases  for  twenty-one  years,"  and 
the  evidence  being  of  a  demise  "  for  15/.  Tent  per  annum,  and  three  fowls," 
under  a  power  "to  make  leases  for  twenty-one  years  in  possession,  and  not 
in  reversion,  rendering  the  ancient  rent,  and  not  dispunishable  of  waste," 
Lord  Holt  directed  a  nonsuit;  and  Savage,  qui  tarn,  v.  Smith,  which  was 
afterwards  stated  by  Lord  Mansfield  in  delivering  the  judgment  of  the 
court,  (f/) 

The  case  stood  over  till  this  day. 
r*S2rl  *Lord  Mansfield,  (after  stating  the  case.) — I  am  very  free  to 
L  -^  own,  that  the  strong  bias  of  my  mind  has  always  leaned  to  prevent 
the  manifest  justice  of  a  cause  from  being  defeated  or  delayed  by  formal 
slips,  which  arise  from  the  inadvertence  of  gentlemen  of  the  profession  ; 
because  it  is  extremely  hard  on  the  party  to  be  turned  round,  and  put  to 
expense,  from  such  mistakes  of  the  Counsel  or  attorney  he  employs.  It  is 
hard  also  on  the  profession.  It  was  on  this  ground  that  I  overruled  the  • 
objection  in  this  case  ;  but  I  am  since  convinced,  both  on  the  authorities 
which  I  am  about  to  mention,  and  on  the  reasoning  in  them,  that  I  was 
wrong,  and  that  it  is  better,  for  the  sake  of  justice,  that  the  strict  rule  should 
in  this  case  prevail.  I  have  always  thought,  and  often  said,  that  the  rules' 
of  pleading  are  founded  in  good  sense.  Their  objects  are  precision  and 
brevity.  Nothing  is  more  desirable  for  the  court  than  precision,  nor  for 
the  parties  than  brevity.  It  is  easy  for  a  party  to  state  his  ground  of  action. 
If  it  is  founded  on  a  deed,  he  needs  not  set  forth  more  than  that  part  which 
is  necessary  to  entitle  him  to  recover.(e)  If  he  states  what  is  impertinent, 
it  is  an  injury  to  the  other  party,  and  may  be  struck  out,  and  costs  allowed, 
upon  motion.  I  remember  a  case,  where,  in  an  action  on  one  covenant,  the 
whole  of  a  very  long  deed  was  set  forth.  The  court  referred  it  to  the 
master,  and  all  was  struck  out  except  the  covenant  on  which  the  action  was 
brought,  and  costs  paid  to  the  amount  of  100/.  When  I  say  that  the 
plaintiff'  needs  onlj'  set  forth  that  part  of  a  deed  on  which  his  action  is- 
founded,  I  do  not  mean  to  say  that  even  that  is  necessary.  He  is  not  bound 
to  set  forth  the  material  parts  in  letters  and  words.  It  will  be  sufficient  to 
state  the  substance  and  legal  effect.  That  is  shorter,  and  not  liable  to 
mis-recitals,  and  literal  mistakes.  Here  that  method  might  have  been 
followed.  It  certainly  was  not  necessary  to  allege  this  part  of  the  lease  that 
relates  to  the  time  of  payment,  in  order  to  maintain  the  action.  But,  since 
it  has  been  alleged,  it  was  necessary  to  prove  it.  The  distinction  is 
between  that  which  may  be  rejected  as  surplusage,  (whic~h  might  have  been 

(a)  Bedford  Asfizes,  12  W.  3.     1  Lord  Raymond,  735. 

{h)  B.  B.  E.  6  Cur.  1.  Sir  W.  Jones,  224. 

(c)  Surrey  Assizes,  1  Ann.  2  Lord  Raymond,  792.  (J)  Infra,  p.  327. 

(e)  Vide  Cowp.  665. 


B  R  1ST  OW     V.     WRIGHT.  549 


.■   ,  \  nv,ri  t^rViit  rinnot.     Where  the  declaration  contains 
struck  out  on  motion,)  ana  wnai  caniiuu      '       .  ■  i     i  .  r 

biruLK  uui.  u  ,j  which  the  master,  on  a  refer- 

imnpri  npnt  matter,  (ore  ijn  to  me  caubu,  uuv-i  ■  -n 

r  t^Hm   rulci  strilcS  out,  (irrelevant  cove.ants,^or  instance     that  will 
be  reiected  by  the  *court,  and  need  not  be  proved.    But  it  the  very  -j 

.oun  1  If  the  action  is  misstated,  as  where  you  undertake  to  recite  L         ^ 
flat     ■  rt  0    a  de  d  on  which  the  action  is  founded,  and  it  is  mis-recited,  that 
il   be   a    I      For  then  the  case  declared  on  is  different  froin  that  which  is 
proved,  and  you  must  recover  secundum  allegata  et  probata.      lh,s  will 
rec  icile  all  he  cases.     In  the  present  instance,  the  plaintiff  undertakes  to 
aie  d^^.  lease,  and  states  it  falsely.     There  are  many  authorities  which  go 
prove    hs  distinction.     I  will  mention  three,  (which  are  very  strong, 
whee  matter  which  it  was  unnecessary  to  set  forth,  be.ng  stated   and  not 
Joved,  the  variance  was  held  to  be  fatal.     The  first  is  the  case  o    Cudl  p 
V  Rund  e.(.)     There,  in  an  action  by  a  lessor  against  his  tenant,  for  negh- 
I'enl   keepin.  his   fire,  by  means  whereof  the   house  was  consumed    a 
den    e  to  the  defendant  for  seven  years  was  stated  in  the  declaraUon  ;  the 
defendant  pleaded,  that  the  plaintiff  did  not  demise  modo  et  forma  ,  and 
fssue  bein^  joined,  it  appeared  on  the  finding  by  the  jury,  in   a  special 
verd  ct   to  le  a  lea  e  at  will.     The  court  agreed  that  the  action  would  have 
Iain  alainst  the  defendant  as  tenant  at  will ;  but,  as  the  plaintiff  had  stated 
Mm  to%e  a  lessee  for  years,  and  had  proved  him  tenant  at  -Mhe  variance 
was  held  to  be  fatal,  and  there  was  judgment   or  Ure  defendant      The  nex 
is  the  case  of  Savage,  qui  tam,  v.  Smith,  in  the  Cornmon  PI  as.(6)     T^rat 
was  an  action  of  debt\gainst  a  sheriff's  officer,  by  an  informe  .     The 
declaration  stated  a  judgment,  and  a  fieri  facias  npon  that  judgment.     Ihe 
fie?  Tc  as  was  ^ivei  in  evidence,  but  not  the  judgment  and  the  court  held, 
thrthouTit  micrht  be  unnecessary  to  aver  the  judgment  ye^ having 
beenatrred,t"ught  to  be  proved;  and  my  Lord  "Chief  Justice  De  Grey 
'rpres  ly  went  upon  the  distinction  between  immaterial  and  imper  inent 
averm  nl  and  said  that  the  former  must  be  provecl,  because  relative  to   he 
point  in  cuestion.fc)     The  third  case  is  Shute  v.  Hornsey  m  this  court.(</ 
?^^     was  an    ction  for  double  rent  on  the  statute.(.)    The  declaration  stated 
a  lease  for  three  years  ;  but,  on  the  evidence,  it  appeared  that  the  lease  fo 
three  y  as  was  void,  under  the  Statute  of  Fmuds :  and  that  the  defendant 
wtody  tenant  from  year  to  year.     This  was  sufficient^  l^,:;tt'"'' 
*of  the  action  ;  but  a  lease  for  three  years  having  been  laid  and  not  -^ 

proved,  the  plaintiff  was  nonsuited  ;  and  a  rale  for  setting  aside  the 
nonsui  having  been  obtained,  it  was,  upon,  the  argument  of  the  case  dis- 
char  d.  These  authorities  are  in  point  to  the  doctrine  I  have  laid  down. 
But  perhaps,  notwithstanding  the  weight  of  the  cases,  if  that  doctrine  were 
biVly  detrimental,  and  the  setting  it  right  would  be  attended  yvith  no 
m-rschief  as  it  is  only- a  mode  of  practice,  it  might  deserve  consideration. 
But  Se ve  L  ^^ands'right  and  upon  the  best  footing  ;  for  it  may  prevent  the 

C„)  B.  R.  T.  .  W.  ^  M.  earth  ^0^  ^.  ^^^^  (A);;i;  ^;^^iS^V"  t...H./," 
(c)  By  a  mistake  of  the  P^^!?,  :;^°:jo/"''LX  „,,,,?^,i"  certainly  was  the  word  used 
in  the  report  of  this  case  m  2  Black^t.  li'J*-  ,.;''"'',,  •  u^.^c  gaid  by  Lord  Mansfield, 
by  De  Grey,C.hief  Justice  as  -PI'--^"f  «?  ^  '  ^^^.^L'^  of  Savaje  v.  Smith,  and  indeed 
but  also  from  a  very  accurate  mauuscnpt  note  1  Have  seen  oi  oav  g 
from  the  context  in  Blackstonc's  own  report.  iq  «   iq 

id)  E.  19  Geo.  3,  (0  1 1  Geo.  2,  cap.  19,  s.  18. 


550 


SMITH    S     LEADING    CASES. 


stufEng-  of  declarations  with  prolix  and  unnecessary  matter,  because  of  the 
danger  of  failing  in  the  proof;  and  may  lead  pleaders  to  confine  themselves 
to  state  the  legal  effect.  We  are  all  of  opinion  that  the  verdict  should  be 
set  aside,  and  judgment  of  nonsuit  entered. 

The  rule  made  absolute. 


"  I  AM  aware,"  said  Mr.  Justice  Bul- 
]er,  in  Peppin  v.  Solomons,  5  T,  R.  496, 
"  that  the  case  of  Bristow  v.  Wright 
has  been  sometimes  doubted,  but  lam 
still  of  opinion  that  it  was  rightly  de- 
cided. In  order  to  entitle  the  plaintiff 
to  maintain  that  action,  it  was  neces- 
sary for  him  to  show  that  he  was  land- 
lord, it  being  an  action  for  taking  the 
lessee's  goods,  without  leaving  a  year's 
rent ;  and,  to  show  that  the  plaintiff 
was  the  landlord,  he  was  obliged  to  set 
forth  a  contract  between  liimself  and 
the  tenant.  Now  contracts  are  in  their 
nature  entire,  and  in  pleading  they  must 
be  stated  accurately ;  but  as  the  evi- 
dence in  that  case  did  not  accord  with 
the  contract  stated  in  the  .declaration, 
and  which  was  the  foundation  of  his 
action,  it  was  properly  determined  that 
a  judgment  ofnon  assumpsit  should  be 
entered."  Accord.  Savage  v.  Smith, 
Blacks.  1101  ;  Williamson  v.  Allison, 
2  East,  452,  ubi  per  Lord  Ellenborough, 
C.  J. — "  With  respect  to  what  aver- 
ments are  necessary  to  be  proved,  I 
take  the  rule  to  be,  that  if  the  whole  of 
an  averment  may  be  struck  out  without 
destroying  the  plaintiff's  right  of  action, 
it  is  not  necessary  to  prove  it;  but  other- 
wise, if  the  whole  cannot  be  struck  out 
without  getting  rid  of  a  part  essential 
to  the  cause  of  action  ;  for  then,  though 
the  averment  may  be  more  particular 
than  it  need  have  been,  the  whole  must 
be  proved  or  the  plaintiff  cannot  recov- 
er." This,  it  may  be  observed,  is  an 
expression  of  the  same  doctrine  that 
was  laid  down  by  Lord  Mansfield  in 
the  principal  case,  in  the  following 
words: — "The  distinction  is  between 
that  which  may  be  rejected  as  surplus- 
age and  what  cannot."  See  Harris  v. 
Mantle,  3  T.  R.  307,  where  in  cove- 
nant the  breach  was  that  the  defendant 
had  not  performed  his  covenant  to  repair, 
hut  on  the  contrary  had  committed 
waste.  Held  that  he  could  prove  no 
non-repair  not  amounting  to  waste,  for 
the   plaintiff  must    recover  secundum 


allegata  et  probata.  See  too  Hawkes 
V.  Orton,  5  A.  &  E.  367  ;  and  Alexan- 
der v.  Bonnin,  4  Bingh.  N.  C.  799; 
where  to  trespass  qu.  c.  f.  the  defendant 
pleaded  that  he  had  license  to  erect  arid 
maintain  a  brick  wall  on  the  locus  in 
quo,  and  having  proved  a '  license  to 
erect  but  not  to  maintain,  it  was  held 
that  the  verdict  on  that  plea  must  be 
entered  against  him.  [In  Hughes  v; 
Parker,  8  M.  &  W.  244,  where^he  de- 
claration stated  a  contract  on  the  part  of 
the  defendant  to  sell,  and  of  the  plaintiff 
to  buy,  a  lease  for  the  residue  of  an  un- 
expired term  of  years  commencing  from 
a  certain  day,  and  the  evidence  was  a 
written  memorandum  signed  by  the  de- 
fendant agreeing  "to  sell"  the  house, 
"to  commence  from"  the  day  alleged, 
the  plaintiff  was  non  suit,  on  the  ground 
that  the  memorandum  imported  the  sale 
of  a  fee-simple  interest.]  In  Martin  v. 
Graham,  7  Ad.  &  Ell.  54,  the  declara- 
tion alleged  that  "  the  defendant  cut 
down  trees,  and  otherwise  used  the 
premises  in  so  untenant-like  and  impro- 
per a  manner,  that  they  became  and 
were  dilapidated."  Held  that  he  could 
not  give  evidence  of  permissive  waste. 
On  the  other  hand,  see  Wells  v.  Hop- 
kins, 5  M.  &-  W.  7  ;  where  in  an  action 
on  a  bill,  the  defendant  pleaded  that  it 
was  accepted  for  hops  to  be  delivered 
according  to  sample,  and  that  plaintiff 
had  not  delivered  hops  according  to 
sample,  or  any  hops  whatever,  the 
words  in  italics  were  rejected  as  sur- 
plusage. 

Upon  this  doctrine  appears  mainly  to 
depend  the  real  utility  of  the  videlicet 
or  to  wit,  so  often  introduced  by  plead- 
ers before  matter  of  description  ;  a  pre- 
caution which  is  totally  useless  where 
the  statement  placed  alter  the  videlicet 
is  material ;  [S.  P.  Stone  v.  Knowlton,  3 
Wendell,  374  ;  Gleasons  v.  M'Vickar,  7 
Cowen,  42;  Janson  v,  Ostander,  1  id.  670; 
Bissell  v.  Drake,  19  Johnson,  66  ;  Vail  v. 
Lewis  &  Livingston,  4  id.  450 ;  Watson 
v.  Osborne,  8  Connecticut,  363  ;  Curley 


B  R  I  S  T  O  W     V.     WRIGHT. 


551 


V.  Dean,  4  id.  259  ;]  but  which,  in  other 
cases,  prevents  the  dang'erof  a  variance, 
by  separating  the  description  from  the 
material  averment,  so  that  the  former,  if 
not  proved,  may  be  rejected,  without 
mutilating'  the  sentence  which  contains 
the  latter.  See  Symons  v.  Knox,  3  T. 
R.  68:  [and  Cooper  v.  Blick,  2  Q.  B. 
915.]  Thus  in  Lampleigh  v.  Braith- 
waite,  ante,  p.  67,  it  is  laid  down  by  the  ■ 
court,  tiiat  under  the  averment,  llint  the 
plaintiff  did  his  endeavour,  videlicet, 
in  equitando,  it  would  not  have  been 
necessary  to  prove  riding,  but  any  other 
r^o.-jni  endeavour  would  have  served, 
'-  '  '  -■  *Bristow  V,  Wright  continues 
to  be  the  leading  case  upon  the  sul)ject 
of  variance ;  the  subsequent  decisions 
will  be  found  collected  and  ably  com- 
mented upon  in  the  notes  to  Coram  v. 
Sweeting,  2  Wms.  Saund.  199,  and  will 
all  be  found  to  boar  out  and  exemplify 
Lord  Mansfield's  doctrine.  But  the  law 
respecting  variances  has,  since  the  deci- 
sion of  Bristow  V.  Wright,  received 
some  very  beneficial  alterations  from 
the  legislature.  In  orderto  understand 
these  perfectly,  it  will  be  necessary  to 
occupy  the  reader  for  a  few  minutes  in 
something  like  an  historical  disquisition. 
After  the  decision  in  Bristow  v.  Wright 
had  pointed  out  in  glaring  colours  the 
fatal  nature  of  a  variance,  the  pleaders, 
naturally  terrified  at  the  idea  of  incur- ' 
ring  a  non-suit,  in  consequence  of  a 
mistake  in  stating  facts,  of  which  their 
clients  had,  perhaps,  furnished  them 
witli  no  very  accurate  account,  began 
to  swell  their  declarations  to  an  extra- 
ordinary and  portentous  size,  by  intro- 
ducing counts  calculated  to  meet  every 
aspect  which  it  was  supposed  that  the 
evidence  could,  at  the  trial,  possibly 
assume,  in  hopes  that  some  one  count, 
at  least,  would  be  found  free  from  any 
material  variance.  While  on  the  other 
hand,  the  pleader  for  the  defendant  was 
equally  astute  in  framing  a  variety  of 
pleas,  in  order  to  meet  every  possible 
defence  upon  which  the  evidence  might 
enable  counsel  to  rely  at  the  trial.  Yet,, 
notwithstanding  all  these  pains,  it  was 
often  found,  at  Nisi  Prius,  that  the  case 
assumed  some  shape  which  the  ingenu- 
ity of  the  pleader  had  not  been  able  to 
divine;  and  the  suitor,  after  incurring 
great  expense,  was  defeated  at  the  mo- 
ment when  the  merits  of  his  case  were 
rendered  apparent  by  the  same  evidence 
which  created  the  variance  between  it 
and    the    statements  contained   in    his 


pleading.  In  order,  in  some  degree,  to 
obviate  these  mischiefs,  st.  9  G.  4,  cap 
1.5,  after  reciting  "  that  great  expense 
was  often  incurred  and  delay  or  failure 
of  justice  took  place  at  trials,  by  rea- 
son of  variances  between  writings  pro- 
duced in  evidence  and  the  recital  or  set- 
ting forth  thereof  upon  the  record  on 
which  the  trial  was  had,  in  matters  not 
material  to  the  merits  of  the  case,"  en- 
acted "  that  it  should  and  might  be  law- 
ful for  every  court  of  record  holding  plea 
in  civil  actions,  any  judge  sitting  at 
Nisi  Prius,  and  any  court  of  Oyer  and 
Terminer  and  general  gaol  delivery  in 
England,  Wales,  Berwick-upon-Tweed, 
and  Ireland,  if  such  court  or  judge  shall 
see  fit  so  to  do,  to  cause  the  record  on 
which  any  trial  may  be  pending  before 
any  such  court  or  judge,  in  any  civil 
action,  or  in  any  indictment  or  inform- 
ation for  any  misdemeanor,  when  any 
variance  shall  appear  between  any  mat- 
ter in  writing,  or  in  print,  produced  in 
evidence,  and  the  recital  or  setting  forth 
thereof  upon  the  record  whereon  such 
trial  is  pending,  to  be  forthwith  amended 
in  such  particular,  by  some  oflicer  of  the 
court,  on  payment  of  such  costs,  if  any, 
to  the  other  party,  as  such  court  or 
judge  shall  think  reasonable;  and,  there- 
upon, the  trial  shall  proceed  as  if  no 
such  variance  had  appeared  ;  and,  in 
case  such  trial  shall  be  had  at  Nisi 
Prius,  the  order  for  the  amendment 
shall  be  indorsed  on  the  postea,  and  re- 
turned together  with  the  record  ;  and 
thereupon  the  papers,  rolls,  and  other 
records  of  the  court  from  which  such 
record  issued,  shall  be  amended  accord- 
ingly." 

The  effects  of  this  statute,  though 
limited  to  one  class  of  cases,  being  found 
beneficial,  it  was  determined  to  extend 
its  enactments,  and  at  the  same  time  to 
compel  the  parties  who  were  to  have 
the  advantage  of  the  increased  facility 
of  amendment  to  co-operate  with  the 
legislature  in  reducing  the  expense  of 
actions,  by  diminishing  the  length  of 
their  pleadings.  Accordingly,  st.  3  &  4 
"W.  4,  cap.  42,  seci  23,  reciting  "  that 
great  expense  is  often  incurred,  and 
delay  or  failure  of  justice  takes  place  at 
trials  by  reason  of  variances,  as  to  some 
particular  or  particulars,  between  the 
proof  and  the  record  or  setting  forlh,  on 
the  record  or  document  on  which  the 
trial  is  had  of  contracts,  customs,  pre- 
scriptions, names,  and  other  matters  or 
circumstances  not  material  to  the  merits 


552 


SMITHS     LEADING     CASES. 


of  the  case,  and  by  the  mis-statement  of 
which   the  opposite  party  cannot   have 
been  prejudiced,  and  the  same  cannot, 
in  any  case,  be  amended  at  the  trial, 
except  where  the  variance  is  between 
any  matter  in  writing  or  in  print,  pro- 
duced   in    evidence,    and    tlie   record," 
enacts  "  that  it  shall  be  lawful  for  any 
|-^r>qn-|  *court   of  record,  holding   plea 
*-         -'in    civil  actions,  and  any  judge 
sitting  at  nisi   prius,  if  such   court  or 
judge  shall  see  fit  so  to  do,  to  cause  the 
record,  writ,  or  document,  on  which  any 
trial   may  be  pending  before  any  such 
court  or  judge,  in  any  civil  action,  or  in 
any  information  in  tlie  nature  of  a  quo 
warranto,   or   proceedings    on   a   man- 
damus, when  any  variance  shall  appear 
between  tlie  proof  and  the   recital,  or 
setting  forth  on  the  record,  writ,  or  docu- 
ment on  which  the  trial  is  proceeding, 
of  any   contract,   custom,  prescription, 
name,  or  other  matter,  in  any  particular 
or  particulars  in  the  judgment  of  such 
court  or  judge  not  material  to  the  merits 
of  the  case,  and  by  which  the  opposite 
party  cannot  have  been  prejudiced  in  the 
conduct   of  his   action,    prosecution,  or 
defence,   to   be   fortliwith    amended   by 
some  officer  of  the  court  or  otherwise, 
both  in  the  part  of  the  pleadings  in  which 
such  variance  occurs,  and  in  every  other 
part  of  the  jdeadings  which  it  may  be- 
come necessary  to  amend,  on  such  terms 
as  to  the  payment  of  costs  to  the  other 
party,  or  postponing  the  trial  to  be  had 
before  the  -same,  or  another,  jury,  or  both 
payment  of  costs  and  postponement,  as 
such  court  or  judge  shall  tliink  reason- 
able ;  and  in  case  such  variance  shall  be 
in  some  particular  or  particulars,  in  the 
judgment  of  such   court  or  judge,  not 
material  to  the  merits  of  the  case,  but 
such  as  that  the  opposite  party  may  have 
been  prejudiced  thereby  in  the  conduct 
of  his  action,  prosecution,  or  defence, 
then   such   court   or  judge   shall  have 
power  to  cause  the  same  to  be  amended 
upon  payment  of  costs  to  the  other  party, 
and  withdrawing  the  recoi'd  and  postpon- 
ing the  trial  as  aforesaid,  as  such  court 
or  judge    shall    think  reasonable  ;  and, 
after  any  such  amendment,  the  trial  shall 
proceed  in  case  the  same  shall  be  pro- 
ceeded with,  in  the  same  manner  in  all 
respects,  both  with  respect  to  the  liabi- 
lity of  witnesses  to  be  indicted  for  per- 
jury and  otherwise,  as  if  no  such  variance 
harl   appeared  ;   and  in  case  such  trial 
shall  be  had  at  nisi  prius,  or  by  virtue 
of  such  writ  as  aforesaid  {alluding  to  the 


writ  of  trial  given  hy  ss.  17  &  1^,)  the 
order  for  the  amendment  shall  be  indor- 
sed on  the  postea  or  the  writ,  as  the  case 
may  be,  and  returned  together  with  the 
record  or  writ;  and,  thereupon,  such 
papers,  rolls,  and  other  records  of  the 
court,  from  which  such  record  or  writ 
issued,  as  it  may  be  necessary  to  amend, 
shall  be  amended  accordingly;  and,  in 
case  the  trial  shall  be  had  in  any  court 
of  record,  then  the  order  for  amendment 
shall  be  entered  on  the  roll  or  other 
document  upon  which  the  trial  shall  be 
had.  Provided  that  it  shall  be  lawful 
for  any  party  who  is  dissatisfied  with  the 
decision  of  such  judge  at  nisi  prius, 
sheriff',  or  other  officer,  respecting  his 
allowance  of  any  such  amendment,  to 
apply  to  the  court  from  which  such  re- 
cord or  writ  issued  for  a  new  trial  upon 
that  ground  ;  and  in  case  any  such  court 
shall  think  such  amendment  iuipropcr, 
a  new  trial  shall  be  granted  accordingly, 
on  such  terms  as  the  court  shall  think 
fit;  or  the  court  shall  make  such  other 
order  as  to  them  shall  seem  meet."  And 
it  is  further  enacted  by  section  24,  "  that 
the  said  court  or  judge  shall  and  may, 
if  they  or  he  think  fit,  in  all  such  cases 
of  variance,  instead  of  causing  the  record 
or  document  to  be  amended  as  aforesaid, 
direct  the  jury  to  find  the  fact  or  facts, 
according  to  the  evidence ;  and  there- 
upon such  finding  shall  be  stated  on  such 
record  or  document ;  and  notwithstand- 
ing the  finding  on  the  issue  joiiied,  the 
said  court,  or  the  court  from  which  the 
record  has  issued,  shall,  if  they  shall 
think  the  said  variance  immaterial  to  the 
merits  of  the  case,  and  the  mis-statement 
such  as  could  not  have  prejudiced  the 
opposite  party  in  the  conduct  of  the  ac- 
tion or  defence,  give  judgment  according 
to  the  very  right  and  justice  of  the 
case." 

This  statute  does  not  repeal  the  9  G. 
4,  c.  15;  a  circumstance  which  it  may 
be  found  in  some  cases  material  to  re- 
member, for  the  power  of  amendment 
given  by  that  statute  extends  to  "any 
civil  action,  or  any  indictment  or  infor- 
mation for  any  misdemeanor ;"  whereas 
the  .3  &.  4  W.  4,  c.  42,  only  includes 
"  civil  action  s,  informations  in  the  nature 
of  a  quo  warranto,  and  proceedings  on 
writs  of  mandamus."  An  indictment 
for  misdemeanor  could,  therefore,  be 
amended  at  the  trial  in  any  particular 
falling  within  the  9  G .  4,  c.  15,  though 
it  certainly  is  not  included  in  the  pur- 
view of  the  3  &  4  VV.  4,  c.  42.     There 


B  R  I  S  T  0  W     V.     WRIGHT. 


553 


[-^qoi-|  *is  another  difference  between 
^  ^  the  two  statutes,  thoiioli  per- 
haps not  likely  to  become  of  any  prac- 
tical importance.  It  has  been  consider- 
ed upon  the  9  G.  4,  cap.  15,  (though 
some  doubts  at  fu-st  existed  on  the  sub- 
ject,) that  the  decision  of  the  judge  at 
nisi  prius,  upon  an  application  to  amend, 
was  conclusive,  and  that  the  court  in 
banco  had  no  jurisdiction  to  review  it. 
Parke  v.  Edge,  3  Tyrwh.  364  ;  1  Cr.  &. 
Mee.  433.  The  3  &  4  W.  4,  cap.  42, 
gives,  it  has  been  seen,  an  express  power 
to  move  tor  a  new  trial,  on  the  ground 
that  an  amendment  under  that  statute 
has  been  improperly  allowed  :  so  that, 
if  a  variance  between  the  record  and  a 
written  document  were  to  be  amended, 
it  might  perhaps  even  now  be  contended, 
though  probably  without  success,  that  the 
amendment  had  been  made  under  the  9 
G.  4,  cap.  15,  and  that  the  judge's  dis- 
cretion was,  therefore,  not  subject  to 
review.  I  say  probably  without  success, 
because  it  would  be  answered  that,  al- 
though the  9  G.  4,  c.  15,  stands  unre- 
pealed, still  that  the  words  of  3  &-  4  VV. 
4,  cap.  42,  are  large  enough  to  give  a 
concurrent  power  of  certifying  under 
that  statute  in  matters  comprehended 
within  the  9  G.  4,  c.  15.  If  that  be  the 
true  construction,  it  would  be  for  the 
judge  to  elect  under  which  statute  he 
should  be  taken  to  have  certified,  and  he 
would  probably  elect  to  certify  under 
that  which  leaves  his  judgment  open  to 
appeal.  Here  it  must  be  observed,  that 
although  the  party  dissatisfied  with  an 
amendment  made  at  nisi  prius  may  move 
for  a  new  trial  on  that  ground,  it  has  been 
held  that  a  party  dissatisfied  on  account 
of  the  judge's  refusal  to  amend  cannot 
do  so.  Doe  V.  Errington,  1  M.  &  Rob. 
344,  n. ;  3  Nev.  &  Mann.  046.  [See 
Doe  d.  Parsons  v.  Heather,  8  M.  &  W. 
158.] 

The  judges  seem  disposed  to  give  a 
very  liberal  construction  to  this  statute, 
and  it  has  been  announced, that  leave  to 
amend  under  it  will  not  be  refused  on 
account  of  the  supposed  hardship  or  im- 
propriety of  the  action,  Doe  dem.  Mar- 
not  V.  Edwards,  1  M.  &  Rob.  321. 
"  Unless,"  said  Parke,  B.  in  tSainsbury 
V.  Matthews,  4  M.  &  W.  347,  "  the 
judges  are  very  liberal  in  the  allowance 
of  amendments,  the  rule  which  binds  a 
plaintiff"  to  one  count  will  operate  very 
harshly."  Besides  this  statute,  there  is 
a  provision  in  one  of  the  rules  of  court 
made  in  pursuance  of  it,  in  Hilary  term, 


1834,  which  diminishes  the  danger  of 
variance  which  formerly  existed  in  one 
particular  case.  It  was  a  well-estab- 
lished doctrine,  that  where  a  party  pre- 
scribed in  pleading,  and  his  prescriptive 
right  was  traversed,  he  was  bound  upon 
the  trial  to  prove  a  prescription  to  the 
full  extent  of  that  which  was  put  in 
issue.  He  might  indeed  prove  a  larger 
prescription,  and  then,  as  that  would 
have  included  the  prescription  traversed, 
he  would  have  succeeded  ;  but  he  could 
never  be  admitted  to  sever  the  prescrip- 
tion traversed,  so  as  to  take  a  verdict 
for  as  much  of  it  as  he  could  prove  :  but 
if  the  issue  were  on  a  larger  right,  and 
the  proof  were  of  a  smaller  one,  he  must 
have  altogether  failed,  uj)on  the  ground 
of  a  variance  between  the  allegation 
traversed,  and  the  evidence  adduced  up- 
on the  trial  in  support  of  it.  1  Wins. 
Saund.  269,  in  notis ;  1  Camp.  309; 
Rogers  v.  Allen,  et  notas;  9  East,  185; 
4  Camp.  189.  Therefore  among  other 
instance,  in  Pring  v.  Henley,  B.  N.  P. 
59,  it  wds  held  that  if  the  plaintifi'  in 
replevin  for  taking  cattle,  in  answer  to 
an  avowry  for  damage  feasant,  pres- 
cribe for  common  for  all  commonable 
cattle,  evidence  of  a  right  of  common  for 
sheep  and  horses  only,  would  not  main- 
tain the  issue,  though,  if  he  had  a  gene- 
ral common,  and  prescribed  for  common 
for  any  particular  sort  of  cattle,  it  would 
be  good.  However,  as  this  doctrine  was 
found  productive  of  great  injustice,  it 
was  directed  by  Gen.  Reg.  Hii.  l:?34,that 
"  where,  in  an  action  of  trespass  quare 
clausum  fregit,  the  defendant  pleads 
a  right  of  way  with  carriages,  and 
cattle,  and  on  foot,  in  the  same  plea,  and 
issue  is  taken  thereon,  the  pica  shall  be 
taken  distributively :  and  if  a  right  of 
way  with  cattle  or  on  foot  only  sliall  be 
found  by  the  jury,  a  verdict  shall  pass 
for  the  defendant  in  respect  of  such  of 
the  trespasses  proved  as  shall  be  justi- 
fied by  the  right  of  way  so  found  ;  and 
for  the  plaintiff  in  respect  of  such  of  the 
trespasses  as  shall  not  be  justified." 
iSec  Higham  v.  Rabett,  5  Bmg.  N.  C. 
622. 

"And  where,  in  an  action  of  trespass 
quare  clansum  fregit,  the  defendant 
pleads  a  right  of  common  of  pasture  for 
divers  kind  of  catties,  ex.  gr. ,  horses, 
sheep,  oxen  and  cows,  and  issue  is  taken 
thereon  ;  if  a  right  of  common  for  some 
particular  kind  of  commonable  cattle 
only  be  found  by  tlie  jury,  a  verdict  shall 
pass  for  the  defendant  m  respect  of  such 


554 


smith's   leading   cases. 


of  the  trespasses  proved  as  shall  be  jus- 


[*332] 


tified  by   the  *right  of  common 


so  found ;  and  for  the  plaintiff 
in  respect  of  the  trespasses  which  shall 
not  be  so  justified." 

"  And  in  al^  actions  in  which  such 
right  of  way  or  common  as  aforesaid,  or 
other  similar  right,  is  so  pleaded  tjiat  the 
allegations  as  to  the  extent  of  the  right 
are  capable  of  being  taken  distributively, 
they  shall  be  construed  distributively." 
See  Knight  v.  Woore,  3  Bing.  N.  C.  3. 
Phythian  v.  White,  3  C.  M.  and  R.  216. 
As  to  tiie  effect  of  a  severed  verdict  on 
such  a  plea,  see  Knight  v.  Woore,  3 
Bing.  N.  C.  534.  However  though 
proof  of  a  more  extensive  right  will  now 
support  the  claim  of  a  less  extensive 
one,  yet  the  latter,  as  is  obvious,  must 
be  such  a  one  as  is  in  contemplation 
of  law  capable  of  being  included  in  the 
former :  thus  the  claim  of  a  profit  a 
prendre  does  not  include  that  of  a  mere 
easement,  Bailey  v.  Appleyard,_8  A.  and 
E.  161  ;  and  see  Higham  v.  Rabett,  5 
N.  C.  62-2. 

The  danger  of  a  variance  was  always 
much  diminished  by  the  circumstance 
that  there  existed  a  certain  class  of  alle- 
gations which  were  always  held  to  be 
distributive  and  divisible,  so  that  it  was 
not  necessary  to  prove  them  in  their 
full  extent.  Thus  the  allegations  of 
trespass  in  a  declaration,  Wilson  v. 
Lainson,  .5  Dowl.  341,  and  of  payment 
in  a  plea,  Cousins  v.  Paddon,  4  Dowl. 
488,  are  devisible,  and  the  plaintiff  in 
the  one  case  and  defendant  in  the  other 
will  succeed  only  for  so  much  as  he  can 
prove.  But  where  the  action  was  for 
trespass  to  a  wall  which  turned  out  to  be 
half  the  plaintiff's  and  half  defendant's, 
semble  that  the  plaintiff  could  not  recover 
on  proof  of  an  injury  to  his  side,  Murly 
V.  JMacdermott,  8  A.  &  E.  142.  The 
consequence  of  this  distributive  mode  of 
reading  pleas  and  declarations  is  fre- 
quently to  save  the  plaintiff  from  the 
inconvenience  of  a  new  assignment :  see 
Cowling  V.  Higginson,  4  M.  &  Welsh, 
245;  Freeman  v.  Crafts,  4  M.  and 
Welsh.  4;  James  v.  Lingham,  5  Bingh. 
N.  C.  553. 

The  opinion  was  for  a  long  time  gen- 
erally entertained  that  in  consequence 
of  the  divisible  nature  of  a  plea  of  pay- 
ment, and  of  the  usual  subject-matter  of 
a  plea  of  set-oft',  a  defendant  pleading 
those  pleas  might  obtain  a  verdict  upon 
part  of  each  though  he  might  fail  in 
establishing  enough  of  either  to  form  a 


complete  answer  to  the  action.  The 
Court  of  Exchequer  has,  however,  lately 
decided  otherwise,  Tuck  v.  Tuck,  5  M. 
and  W.  109  ;  Kilner  v.  Bailey,  ibid.  382, 
and  see  Moore  v.  Butlin,  7  A.  &  E.  595. 
Great  objections  might,  I  apprehend,  be 
urged  against  these  decisions.-  [See 
Falcon  v.  Benn,  2  Q.  B.  314.] 

There  is  another  distinction  which 
frequently  prevented  injustice  from  being 
occasioned  by  a  trifling  variance,  that, 
namely,  between  matter  of  descriplion 
and  matter  of  averment :  for  though  it 
was  necessary  to  prove  the  former  lite- 
rally, it  was  always  sufficient  that  the 
latter  should  be  proved  subslant.ially. 
See  Pope  v.  Skinner,  Hob.  72,  B.  N. 
P.  400 ;  Forty  v.  Imber,  6  East,  434  ; 
Young  v.  Wright,  1  Camp.  "139^  Stod- 
dart  V.  Barker,  3  B.  &  C.  2. 

By  the  different  legislative  provisions 
above  enumerated,  the  severity  of  the 
law  relating  to  variances  in  civil  cases 
has  been  much  alleviated,  and  very 
beneficial  effects  have  been  produced. 
In  criminal  cases,  however,  the  law  of 
variance,  as  laid  down  in  Bristow  v. 
Wright,  still  prevails  in  all  its  pristine 
severity;  except,  indeed,  that  it  has  re- 
ceived the  slight  modification  produced 
by  Lord  Tenterden's  act,  and  which  has 
been  above  stated.  Thus,  when  the 
prisoner  was  indicted  for  stealing  "four 
live  tame  turkeys,"  and  it  turned  out 
that  the  turkeys  had  been  killed  before 
the  prisoner  brought  them  into  the 
county  in  which  he  was  indicted,  it  was 
held  that  the  word  live  was  descriptive, 
and  could  not  be  rejected  as  surplusage, 
and  consequently  that  he  was  entitled 
to  his  acquittal.  Edward's  case,  Russ. 
and  Ry.,  497.  So  if  the  name  of  the 
prosecutor  be  stated  in  the  indictment 
wrongly,  as  if  Shakepear  be  put  for 
Shakespeare,  or  M'Cann  for  M'Carn,  the 
variance  will  be  fatal.  Jannet's  case, 
Russ.  &  Ry.,  351 ;  Shakespeare's  case, 
10  East,  83.  Indeed,  if  the  name  used 
were  idem  sonans  with  the  true  one,  no 
variance  would  be  held  to  exist ;  as  if 
Segrave  was  put  for  Seagrave,  Wil- 
liams V.  Ogle,  2  Str.  889 ;  and  Bene- 
detto for  Beneditto  has  been  considered 
no  variance.  Abitbol  v.  Beneditto,  2 
Taunt.  401. 

So,  too,  if  the  name  of  any  third  per- 
son be  material  to^be  stated  in  the  indict- 
ment, it  must  be  correctly  stated,  or  the 
variance  will  be  fatal ;  see  Durore's  case, 
1  Leach,  352 ;  Jenk's  case,  2  East,  P. 
C,   514;  Deely's  case,   1    Moody,  303 ; 


B  R  I  S  T  O  W     V.     WRIGHT. 


555 


though,  if  the  mention  of  that  third  per- 
son could  be  rejected  as  wholly  imma- 
terial, a  variance  in  stating  it  would  not 
be  fatal ;  Pye's  case,  1  Leach,  352,  n. ; 
for  then  the  rule  laid  down  in  Bristow 
V.  Wright,  and  explained  in  Williamson 
V.  Alison,  would  apply,  viz.,  that  when 
the  whole  of  an  averment  may  be  struck 
out,  without  destroying  the  plaintiff's 
right  of  action,  it  is  unnecessary  to  prove 
it ;  which  rule  is  as  much  applicable  to 
an  indictment  as  to  an  action  ;  and  was 
expressed  as  follows  by  Lord  Ellenbo- 
rough,  in  Hunt's  case,  2  Camp.  585, 
viz, :  "  It  is  a  distinction  that  runs 
through  the  whole  of  the  criminal  law, 
that  it  is  enough  to  prove  so  much  of  an 
indictment  as  shows  the  prisoner  to  have 
committed  a  substantive  crime  therein 
specified."  And  therefore  it  is  the 
common  practice  to  indict  a  man  for 
stealing  several  articles,  when  in  fact  he 
^  has  only  stolen  one,  on  proof  of  which 
the  allegation  respecting  the  others  is 
rejected  as  surplusage,  and  he  is  con- 
victed of  the  larceny  which  lie  has 
really  committed.  So  it  frequently  hap- 
pens that  a  man  is  indicted  for  commit- 
ting a  crime  with  certain  aggravations, 
as  for  committing  burglary  and  larceny, 
or  larceny  in  a  dwelling  house,  some 
person  therein  being  put  in  fear.  In 
such  a  case,  if  the  allegations  in  the 
indictment  respecting  the  matter  of 
aggravation  be  not  proved  ;  as  if,  in  the 
former  case,  the  theft  turn  out  to  have 
been  committed  by  day,  or,  in  the  latter 
case,  not  in  a  dwelling-house  ;  they  may 
be  rejected  as  surplusage,  and  the  de- 
fendant may  still  be  found  guilty  of 
6imple  larceny;  see  VVithal's  case,  1 
Leach,  88  ;  Etherington's  case,  2  Leach, 
671.  This  doctrine  is  exemplified  by 
the  recent  case  of  R.  v.  Jones,  2  B.  & 
Ad.  611.  The  act  9  G.  4,  cap.  41,  pro- 
vides that  no  person  (not  a  parish  pa- 
tient) shall  be  taken  into  any  house  for 
the  reception  of  lunatics  without  a  certi- 
ficate of  two  medical  practitioners.  Sect. 
30  enacts  that  any  person  who  shall 
knowingly,  and  icith  intention  to  de- 
ceive, sign  any  such  certificate,  shall  be 
guilty  of  a  misdemeanor ;  and  likewise 
that  any  physician,  surgeon,  &c.,  who 
shall  sign  any  such  certificate,  tvithoul 
having  visited  and  personally  examined 
the  2>(itie7it,  shall  be  guilty  of  a  misde- 
meanor. The  indictment  stated  that  the 
defendant,  a  surgeon,  knowingly,  and 
with  intention  to  deceive,  signed  a  certi- 
ficate required  by  the  act,  without  hav- 


ing visited  and  personally  examined 
the  patient,  contrary  to  the  statute. 
The  jury  negatived  any  intention  to  de- 
ceive, and  found  the  defendant  guilty, 
^subject  to  the  opinion  of  the  rjifo.io-i 
court  on  a  case  containing  in"-  -' 
substance  what  is  above  stated.  The 
court  held  that  the  conviction  was  right, 
"  Two  species  of  misdemeanor,"  said 
Mr.  Justice  Taunton,  "  are  constituted 
by  the  twentieth  section  of  the  act.  To 
the  offence  first  described,  knowledge 
and  an  intention  to  deceive  are  essen- 
tial ;  but  the  second  clause  makes  it  a 
substantive  offence  to  certify  without  hav- 
ing visited,  independently  of  knowledge 
or  intention.  The  objection  to  this  in- 
dictment on  the  latter  clause  is,  not  that 
the  ofience  is  charged  with  less  fulness 
than  was  requisite,  but  with  more.  But 
if  the  averment  which  has  been  added 
to  the  statutory  description  of  the  offence 
be  unnecessary,  there  is  no  reason  that 
it  should  not  be  rejected.  A  man  may 
be  convicted  of  manslaughter  on  an  in- 
dictment for  murder,  and  of  larceny  on 
an  indictment  for  burglary  ;  and  where 
an  assault  is  alleged  with  certain  intents, 
the  party  may  be  ft)und  guilty  of  assault- 
ing, with  only  one  of  the  intents  alleged. 
These  are  stronger  cases  than  the  pre- 
sent, especially  the  first  two,  where  the 
words  rejected  imply  a  great  aggrava- 
tion of  crime,  and  call  for  a  much  higher 
punishment." 

But  this  rule,  viz.,  "  that  it  is  suffi- 
cient to  prove  a  substantive  offence  con- 
tained in  the  indictment,"  must  be  re- 
ceived with  one  qualification,  viz.,  that 
the  offence  proved  must  be  of  the  same 
degree  as  the  offence  charged  in  the 
indictment;  for  felony  and  misdemeanor 
are  offences  of  so  distinct  a  nature,  and 
so  different  in  their  consequences,  that 
they  cannot  be  charged  in  the  same  in- 
dictment ;  nor  can  a  man  accused  of  one 
be  convicted  of  the  other.  Therefore,  if 
a  man  be  indicted  for  a  misdemeanor, 
and  his  offence  turn  out  to  be  a  felony, 
he  must  be  acquitted,  and  a  new  bill  pre- 
ferred against  him  for  the  graver  ofience. 
So  where  the  prisoner  was  indicted  for 
larceny  of  a  parchment,  which  turned 
out  to  concern  the  realty,  it  was  con- 
tended that  he  might  receive  judgment 
for  the  trespass  of  which  he  had  been 
guilty  in  taking  it.  But  the  court  held 
otherwise,  and  directed  him  to  be  dis- 
charged. Westbeer's  case,  1  Leach,  14; 
2  Str.  1133,  To  this,  there  is,  however, 
an  exception,  created  by  st.  7  and  8  G. 


556  smith's   leading   cases. 

4,  cap.  29,  s.  53,  which  enacts  that  if  a  would  bo  entitled  to  his  acquittal.  There 
defendant,  indicted  for  obtaining'  pro-  is  another  exception  introduced  by  st.  1 
perty  under  false  pretences,  appear  at  Vict.  c.  85,  sec.  II,  by  which  any  pcr- 
the  trial  to  have  obtained  it  in  such  a  son  indicted  for  a  felony  which  includes 
manner  as  amounts  to  larceny,  he  shall  an  assault  may  be  acquitted  of  the 
not  be  acquitted  by  reason  thereof.  But  former  and  fuund  guilty  of  the  latter 
the  converse  case  is  not  provided  for;  charge.  And  by  9  G.  4,  c.  31,  sect.  14, 
and  therefore,  if  it  turned  out  that  a  a  woman  indicted  for  the  felony  of  child- 
prisoner  indicted  for  larceny  had  obtain-  murder  may  be  convicted  of  the  misde- 
ed the  property  by  false  pretences,  he  meanor  of  concealment. 


The  ground  of  the  rule,  as  now  understood,  which  requires  an  immatc- 
vial  allegation,  in  some  cases,  to  be  proved,  is,  the  ascertaining  of  the  iden- 
tity of  the  thing  which  is  the  cause  of  action.  If  the  allegation  be  not  a 
formal  ^;o?'/  of  that  which  is  set  forth  as  the  cause  of  action,  but  be  clearly 
separable  from  it,  it  is  surplusage,  and  an  error  there  will  do  no  harm  : 
but  if  it  be  an  inseparable  and  characteristic  part  of  the  matter,  which  is  the 
cause  of  action,  and  such  as  fixes  its  identity,  the  variance  in  respect  to 
such  a  particular,  however  in  itself  unimportant,  belrween  the  matter  declared 
on,  and  the  matter  offered  in  evidence,  will  make  the  two  things  spec'ljically 
different ;  and,  if  such  evidence  were  held  lo  be  sufficient,  not  only  would 
the  other  side  be  misled  as  to  the  individual  matter,  which  he  is  called  upon 
to  oppose,  but  (which  is  the  more  important  legal  consideration,)  the  record 
would  not  show  the  specific  thing  which  was  in  controvers)^  and  the  judg- 
ment would  not  be  a  bar  to  a  second  suit  upon  the  same  thing.  The  require- 
ment of  the  law,  therefore,  is,  that  the  matter  offered  in  evidence  shall  be 
legally  identical  with  that  alleged  in  the  pleadings. 

In  respect  to  written  instruments,  to  records,  and  to  parol  contracts, 
many  examples  occur,  in  which  an  unimportant  particular  so  far  affects  the 
identity  of  the  thing  in  issue,  viz.,  of  the  instrument,  the'record,  or  the 
contract,  that  the  matter  given  in  evidence  must  correspond  in  that  particu- 
lar, or  else  it  will  be  a  different  thing  from  that  which  is  declared  upon. 
See  Twiss  and  another  V.  Baldwin   and   another,  9  Conniecticut,  291.  302. 

Witli  regard  to  tvritten  instrmnents,  it  is  obvious,  upon  the  reason  above 
stated,  that  the  only  immaterial  matters,  in  respect  to  which  a  variance  will 
be  fatal,  are  such  as  appear  upon  the  face  of  the  instrument,  and  thereby 
affect  its  identity,  and  that  the  averment  of  an  immaterial  particular  dehors 
the  instrument  need  not  be  proved  :  per  Marshall,  C.  J.,  in  Wilson  v. 
Codman's  Executor,  3  Cranch,  193.  Thus  as  to  deeds  and  promissory 
notes,  if  the  plaintiff  declared  that  on  such  a  day,  the  defendant  made  and 
delivered  or  executed  his  deed,  or  made  his  note,  and  the  dale  of  the  deed 
or  note  Avhen  produced,  be  different,  here  is  no  variance,  for  a  deed  may  be 
delivered  or  a  note  made  on  one  day  and  dated  another  ;  Goddard's  Case,  2 
Coke,  4 ;  Coxo'n  v.  Lyon,  2  Camp.  307,  note  ;  see  Battles  v.  Fobes,  2  Metcalf, 
93.  95  ;  but  if  the  plaintiff  allege  that  the  deed  or  note  was  dated  a  certain 
day,  and  the  instrument  in  evidence  is  dated  another  day,  this  is  a  fatal 
variance,  because,  says  Lord  Mansfield,  inMostyn  v.  Fabrigas,  "  it  makes 
it  appear  to  be  a  different   instrument."     Cooke  v.  Graham's  Adm'r,  3 


B  R  I  S  T  O  W      V.     WRIGHT.  557 

Cranch,  229  ;  Stephens  v.  Graham  and  another,  7  Sergeant  &  Rawle, 
505  ;  Church  v.  Feterow,  2  Penrose  &  Watts,  301  ;  see  Alder  v.  Griner, 
13  Johnson,  449.  In  like  manner,  if,  in  setting  forth  the  tenor  of  the 
instrument,  the  words  "  value  received,"  be  erroneously  inserted  or  omitted 
the  variance  is  fatal  ;  Saxton  &  Hutcheson  v.  Johnson,  10  Johnson,  418  : 
Rossiter  v.  Marsh,  4  Connecticut,  196  :  but  if  in  claiming  under  an  assign- 
ment of  an  instrument,  it  be  stated  that  the  assignment  was  for  'value 
received,'  when  it  was  not,  or  was  by  both  administrators,  when  it  was  by 
but  one,  or  was  assigned  by  another  name,  such  a  variation  does  not  affect 
the  identity  of  the  cause  of  action,  and  is  unimportant ;  Wilson  v.  Cod- 
man's  Executor,  3  Cranch,  193:  Lautermilch  v.  Kneagy,  3  Sergeant  & 
Rawle,  202  ;  Wilson  v.  Irwin  and  another,  14  id.  176.  Upon  this  dis- 
tinction, it  was  held  in  The  Chesnut  Hill  Reservoir  v.  Chase,  14  Connecti- 
cut, 123,  that  where  a  declaration  alleged  that, a  corporation,  by  James  A. 
Arnold  and  others,  their  committee,  made  a  certain  promissory  note,  and  the 
note  when  produced  was  signed  James  ^S*.  Arnold  and  others,  committee, 
there  was  no  variance,  because  though  the  declaration  alleged  that  James 
A.  Arnold  signed,  it  did  not  allege  that  he  signed  by  the  name  of  James 
A.  Arnold,  and  he  might  have  signed  by  the  name  of  James  S.  Arnold. 

In  declaring  upon  a  record,  the  principle  is  the  same  ;  an  immaterial  dif- 
ference in  a  matter  not  set  forth  on  the  record  itself,  is  not  fatal ;  as,  where 
in  debt,  on  a  recognizance  of  bail,  the  declaration  alleged  that  the  defendant 
came  into  court  "  by  the  name  of  S.  F.,  of  K.  in  G.  county,  farmer,  and 
became  bail,"  and  the  recognizance  roll  states  that  "S.  F.  of  the  town  of  K. 
and  county  of  D.,  farmer,"  came  into  court  and  became  bail ;  this  is  not  a 
variance,  for  it  is  an  allegation  dehors  the  record,  as  the  record,  though  it 
states  that  a  person  of  the  description  which  it  gives  came  into  court,  does 
not  allege  that  by  that  description  he  came  into  court  and  became  bail,  &c. : 
Rodman  and  others  v.  Forman,  8  Johnson,  26  ;  the  second  objection :  but 
in  reciting  the  record  itself,  the  slightest  variation  is  fatal,  for  it  makes  it  a 
different  record  ;  as,  for  example,  omiting  "  Jr,"  after  a  man's  name,  Kent- 
land  V.  Somers,  2  Root,  437  ;  though  "  Jr."  is  immaterial,  and  no  part  of  a 
man's  name,  Coit  v.  Starkweather,  8  Connecticut,  290  ;  or  mistating  the 
amount,  by  a  single  penny,  Eichelberger  v.  Smyser,  8  Watts,  181. 

These,  it  will  be  observed,  are  cases  where  the  record  is  declared  on  as  the 
instrument  creating  and  constituting  the  cause  of  action  ;  and  the  question 
is,  of  identity  between  the  recorcZ  set  forth,  and  the  record  given  in  evi- 
dence ;  but  where  part  of  the  cause  of  action  or  defence  is,  a  transaction 
in  a  court  of  record,  the  time  of  the  transaction  is  no  part  of  the  transac- 
tion itself;  and  the  allegation  of  the  time  is  like  that  in  an  action  of 
trespass,  of  which  the  court  will  take  no  notice,  or  will  regard  the  number  as 
merely  a  representative  of  whatever  number  may  be  proved.  Purcell  v. 
M'Namara,  9  East,  157;  Stoddart  v.  Palmer,  3  B.  &  C.  2  ;  Brooks  v. 
Bemiss,  8  Johnson,  455. 

This  need  of  verbal  and  literal  accuracy  may  be  avoided,  by  declaring 
upon  the  instrument  or  record,  not  according  to  its  tenor,  or  in  his  verbis, 
but  according  to  its  legal  effect.  The  principle,  however,  is  the  same  : 
that  is  to  say ;  if  the  instrument  be  set  forth  according  to  its  legal  effect, 
there  is  a  variance  if  the  leffal  effect  of  the  instrument  which  is  offered  iu 


558  smith's   leading   cases. 

evidence  be  different ;  Sheehy  v,  Mandeville,  7  Cranch,208  ;  Willoughby 
V.  Raymond,  4  Connecticut,  131  ;  Russell  v.  South-Britain  Society,  9  id. 
509  :  but  if  the  legal  effect,  in  case  of  either  written  agreements  or  records, 
be  the  same,  there  is  no  variance  ;  Ferguson  v.  Harwood,  7  Cranch,  408  ; 
Wilson  V.  Codman's  Executor,  3  id.  193.  208  ;  De  Forest  v.  Brainerd,  2 
Day,  528  ;  Andrews  v.  WilJiams,  11  Connecticut,  326;  Fay  v.  Goulding, 
Jr.  et  al.  10  Pickering,  122;  Wardell  et  al.  v.  Pinney,  1  Wendell,  217; 
Rodman  and  others  v.  Forman,  8  Johnson,  26  ;  Bissell  v.  Kip,  5  Johnson, 
89  ;   Weed  v.  Marsh,  14  Vermont,  80. 

The  rule,  therefore,  is,  that  if  the  plaintiff  has  undertaken  to  set  forth 
the  instrument  or  record,  in  his  verbis,  a  verbal  difference  will  be  fatal  ;  but 
if  he  has  not  undertaken  to  do  that,  it  is  enough  if  the  legal  effect  be  the 
same  :  but  it  is  sometimes  difficult  to  determine,  whether  the  plaintiff  has 
undertaken  to  set  forth  the  instrument  according  to  its  tenor  or  not ;  and 
even  where  he  has,  and  the  difference  is  of  so  slight  a  kind,  being  merely 
in  part  of  a  word,  that  there  could  not  be  any  mistake  as  to  the  identity  of 
the  thing  in  question,  the  difference  has  sometimes  been  held  unimportant. 
Jones  v.  Mars,  2  Campbell,  305  ;  and  see  Whittier  v.  Gould,  8  Watts,  485  ; 
sed  contra,  Craig  v.  Brown,  1  Peters  C.  C.  139  :  but  this  is  a  discretion  to 
be  exercised  tenderly,  and  probably  it  extends  only  to  clerical  errors ;  the 
amendment  of  which,  by  a  single  judge  on  the  trial,  is,  to  some  extent, 
allowable  at  common  law;  see  Jackson  v.  Young,  1  Cowen,  131  ;  Jansen 
V.  Ostrander,  id.  670  ;  Every  v.  Merwin,  6  id.  360.  In  Dunbar  v.  Jumper, 
assignee,  2  Yeates,  74,  it  was  said  that  the  rule  requiring  literal  accuracy, 
was  to  be  confined  to  those  cases  where  the  plaintiff  has  the  original  in  his 
possession,  or  can  by  due  exertion  obtain  it ;  but  probably  the  decision  in 
that  case  is  to  be  sustained  on  the  ground  that  the  record-copy  was,  by  stat- 
ute, as  good  evidence  as  the  original,  and  there  was  fraud  in  the  defendant. 

In  respect  to  parol  contracts  ;  it  has  sometimes  been  supposed,  that  C. 
J.  Marshall,  in  Wilson  v.  Codman's  Executors,  3  Cranch,  193,  had  said, 
that  a  variance  in  an  immaterial  allegation,  never  could  be  fatal,  except  in 
written  instruments  and  records  ;  but  that  is  a  misapprehension  of  his  lan- 
guage and  of  the  point  decided  ;  which  are  in  accordance  with  the  distinc- 
tion above  stated  ;  that  where  a  written  instrument  is  the  cause  of  action, 
an  immaterial  variance  in  a  matter  dehors  the  cause  of  action,  and  not 
affecting  its  identity,  will  do  no  harm ;  and  in  Sheehy  v.  Mandeville,  7  id. 
208,  to  which  the  reader  is  referred,  as  containing  an  extremely  clear  expo- 
sition of  this  subject,  the  same  judge  states  it  as  a  fixed  rule  of  law,  «  that 
in  all  actions  on  special  agreements  or  written  contracts,  the  contract  given 
in  evidence  must  correspond  with  that  stated  in  the  declaration." 

The  cases  show  that  there  is  an  identity  in  parol  contracts,  in  conse- 
quence of  which,  a  variance  in  some  particular,  not  of  the  merits  of  the 
case,  nor  affecting  the  right  of  recovery,  but  characteristic  of  the  con- 
tract, shall  cause  the  contract  in  evidence  to  be  a  different  contract  from 
that  which  is  declared  upon  ;  for  contracts,  says  Buller,  are  in  their  nature 
entire.  The  case  of  Bristow  v.  Wright,  was  of  a  parol  contract ;  and  in 
Alexander  v.  Harris,  4  Cranch,  299,  a  case  very  like  Bristow  v.  Wright, 
it  was  held  by  Chief  Justice  Marshall,  that  where  the  avowry  alleged  a 
demise  for  three  years,  and  the  demise  proved  was  for  one  year  certain,  and 


BRISTOW    V.     WRIGHT.  559 

there  were  two  years'  possession  with  consent  of  the  landlord,  there  was  a 
variance,  though  the  lease  was  not  by  a  written  instrument. 

This  identity  consists  in  the  terms  of  the  contract,  that  is  to  say,  in  the 
consideration  and  [he  promise  ;  not,  of  course,  in  the  time  or  place   when 
or  where  the  contract  was  made,  for  these  are  no  part  of  the  contract.     The 
rule  may  be  stated  as   follows  ;  if  a  parol  contract  be  set  forth  as  that  from 
which  the  cause  of  action  arises  ;  see  Repsher  v.  Shane,  3  Yeates,  575  ; 
Cunningham  v.  Timball,  7  Massachusetts,  65  ;  and  the  terms  of  the  con- 
tract be  stated  with  needless  particularity  ;  yet  if  the  contract  proved  differ 
in  any  of  those  particulars,  the  two  contracts  are  not   the  same :  there  is  a 
variance.     See  Curley  v.  Dean,  4  Connecticut,  259.     Thus,  as  to  conside- 
ration :  the  rule  of  law  is,  that  the  entire  identical  consideration  laid  must 
be  proved  neither  more,  less,  nor  other  ;  see  Lansing  v.  M'Killip,  3  Caines, 
286,  and   Brooks  v.  Lawrie,  1   Nott  &  M'Cord,  342  ;   Russell  v.   South- 
Britain   Company,  9    Connecticut,   508 :   thus,  part   of  the  consideration 
alleged,  was,  the  plaintiff's  engagement  to  give  employment  to  the    defen- 
dant's son,  at  a  price  per  month,  as  long  as  the  plaintiff  should  wish  to 
employ  him,  and  the  engagement  proved  was,  to  employ  him  at  that  rate 
during    the  season,    the   variance  was  held    material    and  fatal,  for   the 
things  were  in  law  essentially   different;  Curley  v.  Dean,  4  Connecticut, 
259  :  and,  where  the   declaration  was  for  pine  timber  sold  and   delivered, 
and  the   only  evidence  was  of  spruce  timber,  the  variance  was  held  fatal, 
because  the  two  things  are  specifically  different ;  Robins  v.  Otis,  1  Picker- 
ing, 368 :  and  where  a  past  consideration  is  alleged,  and  an  executory  one 
proved;  Robertson  v.  Lynch,   18  Johnson,  451;  and  see  Bulkley    and 
others  v.  Landon  and  others,  2  Connecticut,  404  :  and  where  the  alleged 
consideration  was  a  promise  to  pay  thirty-five  dollars,  three  dollars  a  ton, 
and  the  tolls,  and  the  consideration  proved  was  a  promise  to  pay  three  dol- 
lars a  ton,  and  the  tolls,  and  thirty-five   dollars  at  once,  on  account   of  the 
tolls  ;  Stone  v.  Knowltpn,  3  Wendell,  374  ;  and  where  the  consideration  of 
a  warranty  was  alleged  to  be  the  purchase  of  an  article  for  a  certain  price, 
and  the  proof  was  of  one  entire  contract  of  purchase  of  several  articles, 
among  which  was  the  article  alleged,  which  was  rated  at  the  price  averred, 
but  which  thus  appeared  to  be  but  a  part  of  the  consideration  ;  Kellogg  v. 
Denslow,  14  Connecticut,  412  ;  and  where  the  consideration  alleged  is  a 
lease  for  one  year  from  April  1,  and  so  on  from  year  to  year,  and  the  proof 
is  of  a  lease  dated  February  1,  for  one  year,  and  so  on  from  year  to  year, 
which  was  decided  to  be  from  the  date  ;  Keyes  v.  Dearborn,  12  New 
Hampshire,  52  ;  it  has  been  held  a  variance.     And  as  to  the  promise,  or 
matter  to  be  performed,  the  principle  is  the  same :  the  entire  identical  pro- 
mise alleged,  must  be  proved,  and  neither  a  greater,  less,  nor  other  promise ; 
but  this  distinction  is  to  be  noted  between  the  consideration  and  promise  : — 
the  consideration  of  every  contract  is  one  and  entire,  as  being,  the  whole 
of  it,  the  material  cause  of  action,  and,  therefore,  no  part  can   be  omitted 
in  the  declaration  ;  but  there  may  be  several  and  separate  promises,  made 
on  one   consideration,  being  so  many  different  formal  causes  of  action  : 
therefore,  the  plaintiff  need  not  set  out  all  the  distinct  and  several  promises 
which  defendant  has  made,  since  some  may  have  been  performed  or  remit- 
ted, and,  at  all  events,  the  breach  of  them  may  be  no  part  of  the  present 
cause  of  action  ;  Curley  v.  Dean  ;  Alvord  v.  Smith  et  al.,  5  Pickering, 


560  smith's  leading   cases. 

232  ;  and  see  Henry  v.  Cleland,  14  Johnson,  400;  yet  that  identical  and 
entire  promise  set  forth,  must  precisely  be  proved.  Thus,  where,  in 
-assumpsit,  the  declaration  alleged  a  warranty  that  machine  cards  were  good 
and  merchantable,  and  the  evidence  proved  the  warranty  to  be  that  the 
cards  were  equal  to  any  in  America,  this  was  held  to  be  a  variance  ;  Gould- 
ing  et  al.,  v.  Sldnner  et  al.,  1  Pickering,  162  :  and  Avhere  the  promise 
alleged  was,  to  pay  116?.  5s.  at  the  plaintiff's  house,  and  the  promise 
proved  was  to  pay  113/.  135.  4d.,  at  the  defendant's  house,  it  was  held  that 
the  two  contracts  were  dissimilar,  and  that  there  was  a  variance  ;  Umbe- 
hocker  v.  Rassel,  2  Yeates,  339  ;  and  see  Robertson  v.  Lynch,  18  Johnson, 
451  :  and,  if  the  promise  alleged,  be,  that  the  defendant  is  to  pay  for  one- 
half  of  the  lands  included  in  a  certain  road,  and  the  evidence  show  a  pro- 
mise to  pay  for  all  the  lands  included  in  that  road,  and  further  show  it 
to  be  a  part  of  the  same  single  and  entire  agreement,  that  defendant  was 
also  to  pay  for  other  lands  at  the  same  rate,  in  both  these  respects,  the 
A'ariance  is  fatal ;  Crawford  v.  Morrell,  8  Johnson,  253  :  and  if  the  promise 
alleged  be  absolute,  and  that  proved  be  conditional  or  in  the  alternative  ; 
Trask  et  al.  v.  Duval,  4  Washington,  C.  C.  97 ;  Lower  v.  Winters,  7 
Cowen,  263  ;  Stone  v.  Knowlton,  3  Wendell,  374  :  and  if  the  declaration 
allege  that  the  contract  was  to  terminate  «<  at  the  expiration  of  the  season 
for  dressing  cloth,  to  wit,  on  the  1st  day  of  May,  1819,"  and  the  proof  be  of 
a  contract  to  end  with  "  the  season  for  dressing  cloth,"  the  variance  is  fatal, 
for  the  time  at  which  the  contract  is  to  end  is  characteristic  and  descriptive, 
and  fixes  its  identity  ;  Curley  v.  Dean  :  and  for  other  examples,  see  Har- 
ris V.  Rainer,  8  Pickering,  541  ;  Baylies  and  another  v.  Fettyplace  and 
another,  7  Massachusetts,  325 ;  Colt  v.  Root,  17  id.  229 ;  Kellogg  v. 
Denslow,  14  Connecticut,  412. 

But  in  parol  contracts,  it  is  always  enough  if  the  legal  effect  is  the  same. 
Coonley  v.  Anderson,  1  Hill's  N.  Y.  520. 

Upon  the  whole,  the  principle  seems  to  be,  that  the  matter  given  in  eri- 
dence  must  agree  with  that  set  forth  as  the  cause  of  action,  in  all  those 
minute  allegations  which  are  an  inseparable  and  characteristic  part  of  it, 
and  determine  its  identity.  If  there  be  any  allegation  which  may  be  striken 
out  without  impairing  the  legal  cause  of  action,  and  which  is  therefore  no 
legal  part  of  it,  such  need  not  be  proved,  being  surplusage.  See  Gibbs  v. 
Cannon,  9  Sergeant  &  Rawle,  198  ;  per  Spencer,  J.,  in  Lansing  v. 
M'Killip,  3  Caines,  286 ;  Livingston  et  al.  v.  Swanwick,  2  Dallas,  300,  but 
quaere  ?  Panton  v.  Holland,  17  Johnson,  92  ;  Twiss  and  another  v.  Bald- 
win and  another,  9  Connecticut,  291. 

Variance  in  an  instrument  or  contract  can  be  taken  advantage  of,  onl}'- 
under  a  plea  which  puts  the  instrument  or  contract  in  issue.  Alexander 
V.  Harris,  4  Cranch,  299  ;  Douglas  v.  Beam,  2  Binney,  76  ;  Whitlock  v. 
Ramsey's  Adm'x,  2  Munford,  510  ;  Abbott  v.  Lyon,  4  Watts  &  Sergeant, 
38.  The  proper  mode,  however,  of  taking  advantage  of  a  variance  in  the 
condition  of  a  bond,  as  recited  in  the  declaration,  is  to  crave  oyer,  and  set  it 
out  at  full,  and  then  demur  ;  Douglass  v.  Rathbone,  5  Hill,  143. 

No  part  of  the  law  is  more  strongly  founded  in  good  sense  and  reason, 
than  this  relating  to  variance.  "  These  rules  of  law,"  says  Mr.  Washing- 
ton, in  arguendo,  Wroe  v.  Washington  and  others,  1  Washington,  358, 
"  are  in  strict  conformity  with  the  real  and  substantial  purposes  of  a  decla- 


BRISTOW    V.    WRIGHT.  561 

ration  ;  which  are,  1st,  To  apprize  the  defendant  of  the  nature  of  the  charge;  " 
and,  2ndly,  To  enable  him,  by  reference  to  the  record  itself,  to  plead  the 
judgment  in  bar  to  a  second  action,  for  the  same  cause." 

It  must  be  observed  that  in  New  York,  the  rule  respecting  immaterial 
variances  has  given  way  ;  it  being  now  held,  that  no  variance  is  fatal,  but 
such  as  in  the  opinion  of  the  judge  would  mislead  or  surprise  the  opposite 
side ;  and  in  such  cases,  it  is  usual  to  amend  after  verdict.  In  The  East 
Boston  Timber  Co.  v.  Persons  and  another,  2  Hill's  N.  Y.  126,  a  case  pre- 
cisely like  Bristow  v.  Wright,  an  avowry  in  replevin  set  out  a  parol  lease, 
reserving  rent  yearly,  and  the  proof  was  of  a  reservation  half-yearly,  but  the 
judge  admitted  the  evidence;  the  court  in  banc  said,  that  under  the  rule 
formerly  prevailing,  the  variance  would  certainly  have  been  fatal,  but  that 
a  more  liberal  rule  now  prevailed,  and  as  the  judge  was  satisfied  that 
the  variance  was  not  calculated  to  mislead  or  surprise,  it  was  properly 
disregarded;  they  directed  an  amendment,  though  they  doubted  if  it  was 
necessary. 

The  ground  on  which  a  variance  in  an  immaterial  particular  is  fatal  in 
an  indictment,  is  the  same  as  in  a  declaration  :  that  is  to  say,  any  variance 
which  destroys  t+ie  legal  identity  of  the  thing  charged  with  the  thing  proved, 
is  fatal  ;  but  ifthat  specific  thing  which  is  proved,  be  found  charged  in  the 
indictment,  it.  is  good.  Thus  in  setting  out  a  libel  in  an  indictment,  if  any 
word  be  written  in  a  different  manner  from  that  in  the  original  libel,  the 
question  will  be,  whether  the  variance  has  made  it  a  different  word,  or 
whether  it  still  stands  for  the  same  word  :  if  it  be  a  different  word,  the  vari- 
ance is  fatal ;  but  if  it  be  the  same  word  in  an  abbreviated  or  erroneous 
form,  if  it  be  the  representation  of  the  same  thing,  the  sign  of  the  same 
idea,  it  is  not  a  variance.  See  Lewis  v.  Few,  5  Johnson,  1  ;  where  the 
subject  is  ably  considered  ;  United  States  v.  Hinman,  1  Baldwin,  292  ;  and 
if  the  question  of  identity  is  doubtful,  the  court  will  refer  it  to  the  jury.  In 
United  States  v.  John  M'Neal,  1  Gallison,  387,  it  was  held  that  charging  a 
perjury  at  a  trial  of  the  United  States  Court,  holden  19th  May,  when  the 
record  in  evidence  showed  that  the  court  was  first  holden  in  that  year  on 
20th  May,  19th  May  being  Sunday,  was  a  fatal  variance  ;  but  the  correct- 
ness of  that  decision  seems  to  be  very  doubtful.  AVhere  an  indictment  set 
out  a  note,  according  to  the  purport  and  effect  following,  "  /  promise,^''  &c. 
and  the  proof  was  of  a  note,  "  /  promised,''''  &c.,  it  was  held  no  variance, 
for  legally  the  purport  and  effect  are  the  same.'  Commonwealth  v.  Par- 
menter,  5  Pickering,  279.  See  The  People  v.  White,  22  Wendell,  167. 
175,  where  the  subject  of  variance  in  indictments,  is  extensively  examined, 
and  the  above-mentioned  principle  established  ;  confirmed  in  The  People  v. 
Jackson,  .3  Hill's  N.  Y.  92.  The  People  v.  White  was  reversed  by  the 
Court  of  Errors,  24  Wendell,  520,  not  because  the  general  principle  of 
variance  laid  down  was  wrong,  but  because  the  application  of  it  in  that 
case  was- mistaken. 

Amendment  at  Nisi  Prius  is,  in  some  states,  allowed  by  statute. 

In  Pennsylvania,  by  act  of  21  March,  1806,  sec.  6,  amendments  affecting 
the  merits  are  to  be  granted  on  or  before  trial ;  and,  if  thereby  the  other 
party  be  suprised,  a  continuance  shall  be  granted.  The  effect  of  this  act  is 
to  allow  at  trial,  and  after  the  jury  are  sworn,  those  amendments,  which,  at 
common  law,  could  only  be  had  previouly  or 'in  banc  ;  F-  &  M.  Bank  v. 

Vol.  I 36 


562  smith's  leai>isg  cases. 

Israel,  6  Sergeant  &  Rawle,  293  :  under  this  act,  any  amendment  which 
does  not  change  the  cause  of  action,  is  to  be  granted  ;  and  as  to  the  application 
of  this  principle,  the  following  rule  is  established  by  Sergeant,  J^,  upon  a 
review  of  the  cases,  in  Coxe  and  others  v.  Tilghman,  1  Wharton,  282  :./'In 
actions  ex  contractu,  so  long  as  the  plaintiff  adheres  to  the  original  instru- 
ment or  contract  on  which  the  declaration  is  founded,  an  alteration  of  the 
grounds  of  recovery  on  that  instrument  or  contract,  or  of  the  modes  in  which 
the  defendant  has  violated  it,  is  not  an  alteration  of  the  cause  of  action,  [con- 
firmed inCaldvvell  v. Remington,  2  id.  137];  *  %  *  on  the  other  hand,  when 
a  new  instrument  or  contract  is  introduced  as  a  ground  of  action,  the  amend- 
ment is  not  permitted.  *  *  *  In  actions  ex  delicto,  the  rule  .is  the 
same  :  the  foundation  of  the  complaint  laid  in  the  declaration  must  be 
adhered  to,  although  the  modes  of  stating  that  complaint  may  be  varied  by 
an  amendment."  As  amendment  by  this  act  is  mandatory,  th«  decision  of 
the  judge  is  the  subject  of  error:  Sandback  v.  Q,uigley,  8  Watts,  460^ 
Proper  v.  Luce,  3  Penrose  &  Watts,  65  :  whereas  amendment  at  common 
law  is  discretionary,  and  error  does  not  lie.  Burke  v.  Huber,  2  Watts,  306: 
yet  if  the  court  in  grunting  amendments  at  common  law,  exceed  the  limits  of 
their  discretion,  and  transcend  their  power  of  action,  no  doubt  error  lies  ; 
see  Catlin  v.  Robinson,  2  id,  273 ;  Carpenter  v.  Gookin,  2  Vermont,  495  ; 
Probate  Court  v.  Hall  &  Wentworlh,  14  id.  159.  The  ground  on  Avhich  a 
superior  court  may  interfere  in  a  case  of  discretion,  is  very  clearly  stated 
by  Lord  Cottenhaivt,  in  a  late  case:  "The  rule  of  the  Court  of  Chancery 
throughout,  is,  that  in  matters  of  pure  discretion  the  Court  of  Appeal  is  very 
unwilling  to  interfer-e  ;  for  instance,  in  the  appointment  of  guardians  or 
trustees,  because  it  is  merely  the  conjecture  of  one  mind  as  opposed  to  the 
conjecture  of  another;  bat  if  the  master  has  acted  on  a  wrong  principle  in 
his  appointment,  then  the  court  is  bound  to  interfere  to  establish  a  right 
principle ;"  Ironmongers  Co.  v.  Atty-Gen.  10  CI.  &  Fin.  Appeal  Cases,  926. 
And  in  Virginia,  it  seems  to  be  held,  that  the  discretion  of  courts  always  is 
a  legal  discretion,  and  the  subject  of  revision;  Cooke  v.  Beale's  Executors, 
1  Washington,  313. 

In  Massachusetts,  Maine,  New  Hampshire,  Vermont,  and  Connecticut, 
b}^  statutes  and  rules  of  court,  amendments  in  form  or  substance  may  be 
granted  at  any  time  before  judgment,  on  proper  and  reasonable  terms  :  but 
the  rule  is,  that  this  cannot  .extend  to  change  the  form  of  action,  nor  the 
cause  of  action  :  that  is  to  say,  the  new  count  must  be  such  as  has  the  same 
plea,  and  might  originally  have  been  joined,  and  therefore  debt  cannot  be 
changed  to  case  or  trespass,  nor  assumpsit  to  trover;  and  "the  subject- 
matter  of  the  new  count,  must  be  the  same  as  of  the  old  ;  it  must  not  be  for 
an  additional  claim  or  demand,  but  only  a  variation  of  the  form  of  demand- 
ing-t'he  same  thing;"  Ball  v.  Claflin  ;  and,  therefore,  in  an  action  for  the 
price  of  goods,  a  count  on  a  promisssory  note  given  in  full  payment,  cannot 
be  joined  ;  nor  can  a  contract  to  carry  with  due  care,  be  changed  to  a  con- 
tract of  insurance  ;  nor  case  for  malicious  prosecution,  be  changed  to  case 
for  conspiracy.  Hayncs  and  Wife  v.  Morgan,  3  Massachusetts,  208  ;  9lh 
rule  of  court  in  10  id.  373;  Willis  v.  Crooker,  1  Pickering,  204 ;  Van- 
cleef  V.  Therasson  et  al.  3  id.  12  ;  Ball  v.  Claflin,  5  id.  303  ;  Slater  et  al. 
V.  Nason,  15  id.  345  ;  Eaton  v.  Ogier,  3  Greenleaf,  46 ;  Butterfield  v.  Har- 
vell,  3  New  Hampshire,  201 :  and  see  Edgerley  v.  Emerson,  4  id.  147 ; 


UUSHTON    V.     ASFINALL.  563 

Carpenter  v.  Gookin,  2  Vermont,  495  ;  Ross  v.  Bates,  2  Root,  188;  Smith 
V.  Barker,  3  Day,  312.  315.  In  Boston  India  Rubber  Factory  v.  Hoit,  14 
Vermont,  92,  the  court  was  divided  equally  upon  the  question  whether  the 
form  of  action  might  not  be  changed  by  amendment,  upon  terms  of  dis- 
charging the  bail,  which  it  seems  may  now  be  done  in  England. 

As  to  the  practice  in  case  of  a  variance  on  account  of  formal  errors,  in 
those  states  where  there  is  no  statutory  power  of  amending  at  the  trial,  see 
Lyon  V.  Burtis  and  The  Bank  of  New  York,  18  Johnson,  510;  1  Cowen, 
131.  670^  Craig  v.  Elisha  Brown,  1  Peters,  C.  C.  139;  Girard  v.  Stiles, 
4  Yeates,  1.  3;  Every  v.  Mervin,  6  Cowen,  350;  Cole  v.  Goodwin,  19 
Wendell,  252.  254;  Clark  v.  Faxton  and  others,  21  id.  153. 

H.  B.  W. 


*RUSHTON  v\  ASPINALL.  [*334] 


TRINITY— 21  GEO.  3. 

j^REPORTED   DOUGL.   679.]] 

In  an  action  against  the  indorser  of  a  bill  of  exchange,  if  the  plaintiff  do  not  allege  a 
demand  and  refusal  by  the  acceptor  on  the  day  when  the  note  was  payable,  it  is  error, 
and  not  cured  by  verdict. — In  like  manner  it  is  error,  and  not  cured  by  verdict,  if  he 
do  not  allege  notice  to  the  defendant  of  the  refusal  by  tlie  acceptor. 

A  verdict  cures  the  statement  of  a  title  defectively  set  out,  but  not  of  a  defective  title. 

This  case  came  on  upon  a  writ  of  error,  from  the  court  of  the  county 
palatine  of  Lancaster.  It  was  an  action  of  assumpsit.  The  first  count  in 
the  declaration,  after  stating  a  bill  of  exchange  drawn  by  one  Billinge  on  one 
Meyer,  dated  tbe  27th  of  November,  1778,  and  payable  to  one  Jones,  or 
order,  three  months  after  date  ;  that  Jones  had  indorsed  it  to  Rushton  ;  and 
Rushton  to  Aspinall;  proceeded  as  follows:  "which  said  bill  of  exchange, 
so  made,  subscribed,  and  indorsed  as  aforesaid,  afterwards,  to  wit,  on  the 
same  day  and  year  aforesaid,  (viz.. the  day  of  the  date  of  the  bill,)  at  Man- 
chester aforesaid,  was  shown  and  presented  to  the  sai4  Peter  Meyer,  for  his 
acceptance  thereof,  and  the  said  Peter  Meyer,  according  to  the  usage  and 
custom  of  merchants  aforesaid,  did,  then  and  there,  accept  the  same,  and 
promise  to  pay  the  said  sum  of  22/.  lO.s.  therein  mentioned,  according  to 
the  tenor  and  effect  of  the  said  bill  of  exchange,  and  the  indorsements 
thereupon  so  made  as  aforesaid  ;  yet  the  said  Peter  Meyer,  although  after- 
wards, to  wit,  the  same  day  and  year  aforesaid,  at  Manchester  aforesaid, 
requested  to  pay  the  said  sum  of  money  in  the  *said  bill  specified,  *oo--| 
according  to  the  tenor  and  effect  thereof,  and  of  his  acceptance  L  '^■^ 
thereof  so  made  as  aforesaid,  altogether  neglected  and  refused,  and  still  doth 
neglect  and  refuse,  to  pay  the  same,  all  of  which  premises  the  said  John 
Jones,  George  Billinge,  and  Peter  Meyer,  respectively,  the  same  day  and 


564  smith'sleadingcases. 

year  aforesaid,  at  Manchester  aforesaid,  in  the  county  aforesaid,  had  noticp, 
and  by  reason  thereof,  and  according  to  the  said  usage  and  custom  of 
merchants,  the  said  Thomas  Rushton  became  liable  to  pay  to  the  said 
Joseph  Jlspinall  the  said  sum  of  money  in  the  said  bill  of  exchange  con- 
tained, according  to  the  tenor  and  effect  thereof,  and  of  the  several  indorse- 
ments so  made  thereon  as  aforesaid,  and,  being  so  liable,  the  said  Thomas,  • 
afterwards,  to  wit,  the  same  day  and  year  last-mentioned,  at-  Manchester 
aforesaid,  in  the  county  aforesaid,  in  consideration  thereof,  undertook,  and 
to  the  said  Joseph  then  and  there  faithfully  promised,  to  pay  to  him  the  said 
sum  of  money,  in  the  said  bill  of  excha'nge  contained,  according  to  tenor 
and  effect  thereof,  and  according  to  the  several  indorsements  made  thereon, 
as  aforesaid." 

The  second  count  was  for  another  bill  for  60/.  drawn,  indorsed,  and 
accepted  by  the  same  parties  ;  and  was  framed  in  the  same  manner  with 
the  first. 

The  last  count,  which  was  upon  an  insimul  computasset,  concluded  that 
the  said  Thomas  was  found  in  arrear,  and  indebted  to  the  said  Joseph  in 
the  further  sum  of,  &c.,  "  and  thereupon,  being  so  found  in  arrear,  and 
indebted  as  aforesaid,  the  said  Thomas,  in  consideration  thereof,  afterwards, 
to  wit,  &c.,  undertook,  and  to  the  said  Thomas  then  and  there  faithfully 
promised,  to  pay  to  him  the  said  last  sum,  when  he  should  be  afterwards 
thereto  requested." 

There  was  a  general  verdict  for  the  plaintiff,  and  judgment  being  entered, 
the  record  was  removed  into  this  court,  and  the  plaintiff  in  error  assigned 
several  errors  on  the  different  counts,  but  which  contained  only  three  objec- 
tions ;  two  to  the  two  first  counts,  and  one  to  the  third  :  viz.,  1.  That  it 
appeared  by  the  record  that  the  bill  was  made  on  the  27th  of  November, 
1778,  payable  three  months  after  date,  and  that  the  payment  was  demanded 
of  Meyer  on  the  very  same  27th  of  November  ;  whereas,  according  to  the 
tenor  of  the  bill,  and  the  custom  of  merchants,  it  was  not  payable,  nor  the 
^  payment   demandable   of  Meyer,  *until   the   expiration   of  three 

L  -1  months  after  the  date  thereof.  2.  That  it  did  not  appear  that  Rush- 
ton,  to  whom  the  bill  was  indorsed,  and  who  indorsed  it  to  Aspinall,  had 
any  notice  of  the  refusal  of  Meyer  to  pay  the  money  in  the  bill  mentioned, 
when  the  same  was  and  became  due,  and  had  been  demanded  of  him,  with- 
out which  notice  the  said  Thomas  Rushton,  as  an  indorser  of  the  said  bill 
of  exchange,  was  not  liable  by  the  law  of  this  kingdom,  and  according  to 
the  usao-e  and  custom  of  merchants  aforesaid,  to  the  payment  of  the  money 
therein  mentioned, as  such  indorser  of  the  same  bill.  3.  That  by  the  record, 
it  "appeared  that  the  promise  of  the  said  Thomas  Rushton,  mentioned  in  the 
last  count,  was  made  to  himself  the  said  Thomas  Rushton,  and  not  to  the 
said  Joseph  Aspinall ;  wherefore  the  said  Joseph  Aspinall  could  not  have 
or  maintain  any  action  thereof  against  the  said  Thomas  Rushton. 

In  the  last  term,  on  Friday,  the  25th  of  May,  the  case  was  argued,  by 
Chambre  for  the  plaintiff'in  error,  and  Wood  for  the  defendant. 

Chambre  abandoned  the  objection  to  the  last  count,  but  contended  that 
the  other  two  were  fatal.  1.  The  contract  by  the  indorser  to  pay  the  bill 
was  not  absolute,  he  said,  but  conditional,  i.  e.  in  the  event  of  a  demand 
beino-  made  on  the  acceptor  at  the  time  of  payment,  and  his  refusal.  Such 
demand,  therefore,  must  be  made,  in  order  to  render  the  indorser  liable.    It 


RXJSHTON     V.     ASPINALL.  565 

was  a  necessary  circumstance  to  entitle  the  drawer  to  an  action  against  him, 
and  a  plaintiff  must  in  all  cases  state  a  sufficient  cause  of  action  in  his  ducla- 
ration.  2.  In  like  manner  the  indorser  is  not  liable  till  after  he  has  had 
notice  of  a  demand  having  been  made  upon  the  drawer,  and  of  his  refusal. 
How  soon  such  notice  shall  be  given,  what  shall  or  shall  not  be  reasonable 
time  for  notice,  is  a  matter  of  consideration  for  the  jury  ;  but  some  notice 
must  be  given,  and  therefore  ought  to  be  alleged. 

Wood  argued,  in  answer  to  both  objections,  that  the  facts  of  the  demand 
and  notice  being  circumstances  without  which  the  jury  could  not  have  found 
for  the  plaintiff,  they  must  now  be  presumed  to  have  been  proved,  and  that 
the  omission  to  allege  them  in  the  declaration  could  not  be  taken  advantage 
of  after  verdict.     For  this  he  cited  the  case  of  Hitchin  v.  Stevens,  in  Show 
er,(a)  where  in  an  action  of  debt  for  rent  by  the  bargainee  of  a  reversion, 
after  a  *verdict  for  the  plaintiff,  it  was  objected,  in  arrest  of  judg-  |-*qq-y-| 
ment,  that  the  plaintiff  had  not  alleged  attornment,  without  which  (as  L        J 
the  law  then  stood)  he  could  have  have  no  title  ;  "  but  a  rule  was  taken  and 
agreed  by  all  the  court,  that,  in  any  case  where  any  thing  is  omitted  in  the 
declaration,  though  it  be  matter  of  substance,  if  it  he  such  as  without  prov- 
ing it  at  the  trial,  the  plaintiff  could  not  have  had  a  verdict,  and  there  be  a 
verdict  for  the  plaintiff,  such  omission  shall  not  arrest  the  judgment ;"  and 
thereupon,  after  solemn  debate,  judgment  was  given  for  the  plaintiff.    With 
regard  to  the  first  objection  in  particular,  he  contended,  that  the  allegation, 
under  a  videlicet,  that  the  demand  of  payment  was  made  on  the  37th  of 
November,  might  be  rejected   as  surplusage.     This  was   no  more   than 
appeared   to  have  been  done  in  a  case   of  Sorrel  v.  Lewin,  reported   by  ■ 
Keble.(6)     There,  in  an  action  of  indebitatus  assumpsit,  the  promise  was 
laid  on  the  1st  of  January,  27  Car.  2,  which  was  a  day  not  yet  come,  and, 
after  verdict  it  was  held  to  be  cured,  because  that  must  have  been  found  on 
evidence  of  a  promise  before  the  action,  and  a  duty  before  the  promise.  And, 
as  to  the  second  objection  in  this  case,  although  there  was  no   allegation  of 
notice  to  the  indorser,  yet  it  was  stated,  that  he  promised  to  pay,  after  the 
acceptor  had  refused,  which  he  could  not  be  supposed  to  have  done  without 
a  knowledge  of  the  refusal  by  the  acceptor. 

Chambre,  in  reply,  observed,  that  the  rule  mentioned  by  Wood  could  not 
extend  so  far  as  he  would  carry  it,  otherwise  a  writ  of  error  could  never  be 
supported,  in  any  case  after  verdict.  The  court  would  intend,  that  facts 
imperfectly  stated  had  been  completely  proved,  but  they  never  could  pre- 
sume, that  a  material  fact,  Avhich  Avas  not  at  all  stated  had  been  proved.  The 
first  objection  would  not  be  removed  by  rejecting  the  words  stating  the 
demand  to  have  been  on  the  day  when  the  bill  was  drawn,  for  still  the 
declaration  would  remain  without  an  allegation  of  the  demand  at  the  time 
when  the  bill  became  due.  As  to  the  promise  by  Rushton,  that  is  only  con- 
sidered as  an  inference  of  law,  and  no  such  inference  arises,  unless  it 
appears  by  the  preceding  part  of  the  declaration  that  he  was  liable  ;  or,  if 
it  is  taken  as  an  actual  promise,  yet  it  might  have  been  made  without  notice 
of  the  refusal  by  the  acceptor  ;  and  if  it  was,  *no  action  could  be  p.*;qc>Q-| 
maintained  upon  it,  because  without  such  notice,  there  would  be  no  L  J 
consideration. 

(a)  B.  R.  M.  4  Car.  2,    Show.  233.  (h)  B.  R.  M.  26  Car.  2.    3  Keb.  354. 


566  smith's  leading  cases. 

The  court  were  prepared  to  have  given  judgment  the  last  day  of  Easter 
Term,  (Mondaj^  the  28lh  of  May,)  but  neither  of  the  counsel  in  the  cause 
"being  present  when  Lord  Mansfield  was  obliged  to  go  the  House  of  Lords, 
the  case  stood  over  till  this  day. 

Lord  Mansjield. — The  two  objections  insisted  upon  are,  1.  That  the 
declaration  does  not  allege  a  demand  on  the  acceptor.  2.  That  it  does  not 
state  notice  to  the  defendant,  of  the  acceptor's  refusal  to  pay.  The  answ^er 
was,  that,  after  verdict,  it  must  be  presumed,  that  those  facts  were  proved  at 
the  trial ;  and  our  wishes  strongly  inclined  us  to  support  the  judgment,  if 
we  could.  But,  on  looking  into  the  cases,  we  find  the  rule  to  be,  that, 
where  the  plaintiff  has  stated  his  title  or  ground  of  action  defectively  or 
inaccurately,  because,  to  entitle  him  to  recover,  all  circumstances  necessary, 
in  form  or  substance,  to  complete  the  title  so  imperfectly  stated,  must  be 
proved  at  the  trial,  it  is  a  fair  presumption,  after  a  verdict,  that  they  were 
proved  ;  but  that,  where  the  plaintiff  totally  omits  to  state  his  title  or  cause 
of  action,  it  need  not  be  proved  at  the  trial,  and  therefore,  there  is  no  room 
for  presumption.  •  The  case  cited  from  Shower  comes  within  this  distinc- 
tion ;  for  the  grant  of  the  reversion  Avas  stated,  which  could  not  have  taken 
effect  without  attornment,  and  therefore,  that  being  a  necessary  ceremony,  it 
was  presumed  to  have  been  proved.  But,  in  the  present  case,  it  was  not 
requisite  for  the  plaintiff  to  pi'ove  either  the  demand  on  the  acceptor,  or  the 
notice  to  the  defendant,  because  they  are  neither  laid  in  the  declaration,  nor 
are  they  circumstances  necessary  to  any  of  the  facts  charged.  If  they  were 
presumed  to  have  been  proved,  no  proof  at  the  trial  can  make  good  a<Iecla- 
ration,  which  contains  no  ground  of  action  on  the  face  of  it.  The  promise 
alleged  to  have  been  made  by  the  defendant  is  an  inference  of  law,  and  the 
declaration  does  not  contain  premises  from  which  such  an  inference  can  be 
drawn. 

I  see,  in  a  note  of  a  case(G)  in  this  court,  in  Easter  Term,  18  Geo.  3,  I 
am  stated  to  have  said,  "a  verdict  will  not  mend  the  matter  where  the  gist 
of  the  case  is  not  laid  in  the  declaration,  but  it  will  cure  ambiguity  ;"  and 
there  is  a  strong  case  in  print  of  an  action  for  keeping  a  malicious  bull, (6) 
^  where  the  scienter  having  been  omitted  *in  the  declaration,  it  was 

L         J  held  bad  after  verdict.     Therefore  we  are  all  of  opinion  that  there 
should  be  judgment  for  the  plaintiff  in  error. 

The  judgment  reversed. 


■The  principle  on  which  this  case  was  the  sfatemejit  of  a  title  defectively  set 
decided,  and  which  it  is  conimonly  cited  out,  (see  Tibbitts  v.  Yorke,  4  A.  &  E. 
to  establish,  viz.,  that  a  verdict  cures     1:37,)    but    not  of  a    defective   title,  is 

(a)  Cowp.  82.5,  Avery  v.  Hoole.  It  was  an  action  against  an  unqualified  person  for 
using  a  o-un.  The  declaration  stated,  that  the  defendant  used  a  g-un,  being-  an  engine  for 
the  destruction  of  game.  In  arrest  of  judgment,  it  was  objected,  that  it  was  not  averred 
that  the  defendant  used  the  gun  for  tiie  destruction  of  game,  but  the  court  overruled  the 
objection.  Lord  Mansfield  observed,  that,  according  to  one  way  of  pointing,  the  ofl^ence- 
was  sul^cicntly  chftrged,  and  tliat  such  an  ambiguity,  though  it  might  be  a  good  cause  of 
special  demurrer,  or  an  objection  to  a  conviction  (as  was  held  in  a  case  of  Rex  v.  Hunt,) 
was  cured  by  a  verdict. 

(<*)  Buxendcn  v.  Sharp,  C.  B.  E.  8  Will.  3.  2  Salk.  662.  3  Salk.  12. 


nUSHTON    V.  A.SPINALL.                                           567 

,  .    ^,         t„^  ♦„  <af„„  T  ihol The  words  in  a  letter  from 

Toarripdlvfl  scnssed  m  the  notes  to  bten-  i^ioci.      i-iie   wuiuo 

IcaTneayaiscDssea  u  defendant  to  1>.  were  as  follows  :— 

nell  V.  Ho^,  1  W    -  -au.^^  In    lenry  "I  have  reason  to  belive  that  many  of 

>Iayter  v  W«^^'  ^  Uo^U.  -^^^     "  ^^^  the  flowers  of  which  I  have  been  robbed 

V.  Burbr.dgc  3Bino   N   U   ^Ui,acou  premises.     Innu- 

agamst  th«  dnuver  «*  ^^^  '  "^^^^'^,^="4=1  e^doT  that  tite  pkint.fl'  had  been  gu.lty 

a  promise  to  pay  was  held  bad  on ^pe  ^n     ,                  i                ^^ 

cial  demurrer,    g^    -f^  ^^^  '  ^^^^^^^^^  'and   rS  and  unlawfully  disposed  of 

after  verdict      |^  ''^^^V'   *^^^°  ,    l^r/  them  to  P.,  and   placed    them   in   P.'s 

2  Mee.  &  VVelsb.  ^'^^ ;  6  Dow  •  Uo  them  to  i-             I^^   ^^^^^  ^^^^^.^^   ^^^^ 

S.  C      See  Chevers  v.   Paikington,  0  g^J^J^^"'^^^, .    ^^^^,^^    .j^^^    ,,,,y    ^ere 

Tl  "e  w^nt  of  an  allegation  of  malice  flowers  capable  of  being  subjects  of  lar- 

iu  an  acUoili  arrestfng  without  pro-  ceny.     Gardiner  v.  Williams,  5  lyrwh. 

bable  cause,  is  bad  after  verdicL    Saxon  7o7. 
V.  Castle,  6  /V.  «Si  E.  660. 


T.IE  distinction  here  noted  is,  in  principle,  a  clear  one  ;  bu  the  qmbblu  g 
rule  quoted  in  the  preceding  note,  rather  confuses  than  explains  U.  1  e 
amount  of  the  principle  is  this,:  the  declaration  must  state  a  cause  of  action  , 
i  some  matter  material  to  the  cause  of  action  be  averred  only  unp  dly 
inferentially,  indirectly,  or  with  too  much  generality  yet  substantially  be 
aven-ed,  t hi  defect  ia^he  form  and  manner  of  the  allegation  will  be  com- 
monlv  cured  by  verdict :  but  if  it  be  not  stated  m  the  declaration  at  all,  the 
omission  cannot  be  supplied  by  the  verdict.  W.^^rvrrnv  in 

.It  may  be  laid  down  as  a  general  rule,"  says  Judge  Washingto^,  hi 
Gray  &  olgood  v.  James  et  al.  1  Peters's  C.  C.  470.  48-.,  (adopted  m  Shavv 
V.  Redmond,  11  Sergeant  &  Rawle.  27,)  ;ahat  a  '^-'-^^'-.^l^f-^^^f  "Xt 
to  sho^y  a  title  in  the  plaintifi;  and  that  with  convenient  certainty.    It  ought 
to    tate  all  matters  that  are  of  the  essence  of  the  action,  without  which   he 
plaintiff  fails  to  show  a  right  in  point  of  law  to^ask  for  the  P^grnent  of  the 
Lurt  in  his  favour.     If  enough  is  stated  to  show  title  in  the  p  aint  ff    nd 
with  sufficient  certainty  to  enable  the  court  to  give  judgment,  bat  with  les 
certainty  than  the  case  admitted  of,  and  which,  for  the  purpose  of  no uc    to 
the  adverse  party  or  otherwise,  ought  to  have  beeri.  stated,  the  defect  is 
cured  by  the  verdict.    The  court  will  presume  that  all  such  omissions  were 
supplied,  and  obscurities  explained,  at  the  trial,  ^7  the  evidence  given   o 
the    ury."  .  .  "The  rule  of  law,"  says  Tilghmak,  C.  J.,  ^  is,  that  where 
he   declaration  contains  a  substantial  cause  of  action,  it  sluiU  be  aided, 
thou'h- defective  in  form;"   Miles  v.  Oldfield,  4  Yeates,  423  ;  Welsh  v^ 
Vanbercer  &  Chambers,  id.   420;    Schlosser  v.   Brown,    17  Sergeant  & 
Rawle.°250.  .  .  "  Those  defects,  or  omissions,  in  pleading,  which  arc  cured 
bv  the  verdict."  says  Mr.  Chancellor  Kent  in  Bartlett  v.  Crozier,m  error, 
17   Johnson,   439.  458,  "are  those    necessary  circumstances  which  are 
implied   by   law,  and   which  inevitably  follow  from  the  substantial   fac 
charo-ed.     Thus,  where  it  is  pleaded,  that  land  was  assigned  for  dower,  it 
I  not  necessary  to  say  it  was  by  metes  and  bounds,  for  that  fo  lows  o 
course,  as  included  in  a  lawful  assignment ;  and  where  it  ^^  Pl^'^'^^/  J;'^^ 
the  sheriff  made  his  warrant,  it  is  presumed  to  have  been  under  seal,  for   t 
could  not  have  been  a  warrant  if  it  was  not;  and  if  aman  avers  he  is  he.i  to 
Am  the  death  of  A.  is  implied,  for  there  could  be  no  heir  if  he  were  hving. 


568  smith's  leading  cases. 

— See  Bayard  v.  Malcolm  and  Malcolm,  1  id.  453,  S.  C.  in  error,  2  id.  550, 
where  the  whole  subject  is  thoroughly  examined  ;  Addington  v.  Allen,  11 
Wendell,  375;  Dobson  v.  Campbell,  1  Summer,  319;  Kingsley  v.  Bill  et 
al.,  9  Massachusetts,  199;  Ward  v.  Bartholomew,  6  Pickering,  409; 
Hendrick  v.  Seeley,  6  Connecticut,  176;  Moor  v.  Boswell,  5  Massachusetts, 
306,  where  defects  in  certainty,  i.  e.  particularity,  and  in  directness,  were 
decided  to  be  aided  by  verdict. 

On  the  other  hand  the  entire  omission  of  something  that  is  necessary  to 
give  the  plaintiff  a  right  to  recover  what  he  claims ;  as,  in  an  action  of 
covenant,  omitting  to  state  the  covenant,  whose  breach  is  averred  ;  Pumeroy 
V.  Bruce,  13  Sergeant  &  Rawle,  186;  in  an  action  of  assumpsit,  omitting 
to  state  the  consideration  of  the  promise  ;  Whitall  v.  Morse,  5  id.  358  ; 
Gains  v.  Kendrick,  2  Mills's  Reports  Const.  Ct.  of  So,  Car.  339  ;  Hall  v. 
Smith,  Young  &  Hyde,  3  Munford,  550 ;  Beverleys  v.  Holmes,  4  id.  95  ; 
Moseley  v.  Jones,  5  id.  23  ;  in  an  action  on  an  award,  omitting  to  state  that 
notice  of  the  award  was  given  to  the  defendant  before  the  commencement 
of  the  suit,  such  notice  being  necessary  as  part  of  the  foundation  of  the 
action;  Kingsley  v.  Bill  et  al.,  9  Massachusetts,  199:  in  an  action  to 
recover  a  penalty  for  extortion,  omitting  to  state  who  was  guilty  of  the  extor- 
tion ;  Stilson  v.  Tobey,  2  id.  521  :  in  trespass  de  bonis  asportatis,  omitting 
to  state  the  plaintiff's  title  to  the  goods,  Carlisle  and  wife  v.  Weston,  1 
Metcalf,  26,  will  not  be  helped  by  the  verdict :  and  in  debt  on  bond  condi- 
tioned for  the  performance  of  an  award  which  required  certain  acts  to  be 
done  by  the  defendant,  an  omission  to  state  the  time  when  the  acts  were  to 
be  done,  and  thereby  show  a  breach  of  duty  by  defendant,  was  held  not  to  be 
cured  by  a  verdict  on  special  issues  relating  to  the  validity  of  the  award,  and 
rot  to  its  performance  ;  Dale  v.  Dean,  16  Connecticut,  580.  The  cases  of 
White  V.  Delavan,  17  Wendell,  49,  and  21  id.  26,  and  Fidler  v.  Delavan, 
20  id.  57,  go  upon  this  distinction.  See  Griffin  v.  Pratt  and  another,  3 
Connecticut,  513,  where  from  a  review  of  the  cases,  the  principle  is  deduced, 
that  "the  omission  to  allege  a  matter  in  the  pleadings,  essential  to  the 
action,  unless  it  may  be  implied  from  the  allegations  made,  is  never  cured 
by  verdict." 

The  point  decided  in  the  principal  case, —  that  notice  to  the  endorser  is 
a  part  of  the  plaintiff's  title  to  recover,  and  is,  indispensably,  to  be  alleged 
in  the  declaration,  has  been  approved  of  by  numerous  dicta  in  this  country  ; 
see  Renner  v.  Bank  of  Columbia,  9  Wheaton,  582.  595.  In- Pennsylvania, 
it  was  expressly  decided  in  Miles  in  error  v.  O'Hara,  High  Court  of  Errors 
and  Appeals,  July,  1807,  of  which  there  is  the  following  note  in  1  Smith's 
Laws,  p.  18  :  "  It  is  a  settled  principle,  that  judgment  cannot  be  rendered 
for  a  plaintiff,  unless  a  cause  of  action  appears  on  the  face  of  his  declaration. 
If  it  appears  in  substance,  the  court,  after  verdict,  will  support  it,  though 
defectively  set  forth  ;  because  it  will  be  presumed  the  deficient  matters 
Avere  proved  on  the  trial ;  but  a  verdict  will  not  n^end  the  matter,  where 
the  gist  of  the  case  is  not  laid  in  the  declaration,  though  it  will  cure  ambi- 
guity. The  want  of  an  express  promise  might  be  dispensed  with,  provided 
enough  was  stated  to  raise  a  promise  by  implication  of  law.  But  the  drawer 
of  a  bill  of  exchange  is  not  liable,  unless  he  receives  notice  of  the  non-pay- 
ment of  the  acceptor,  and  such  notice  must  be  alledged  in  the  declaration  ;• 
an  allegation  in  the  declaration  that  the  drawer  became  liable  by  the  custom. 


RUSHTON     V.     ASPINALL.  569 

of  merchants,  is  not  sufficient;  because  the  law-merchant  is  not  a  matter,  of 
fact,  but  of  law.''''  And  this  case  is  approved  of  in  Weigley's  adm'rs  v. 
Wier,  7  Sergeant  &  Rawie,  309,  310,  and  in  the  Juniata  Bank  v.  Hale  and 
another,  16  id.  157.  160:  See  also  Smith  v.  The  Bank  of  Washington,  5 
id.  318.  321. 

The  cases  most  usually  occurring  in  which  a  defect  in  particularity  is  not 
aided  by  verdict,  are  those  in  which  the  cause  of  action  is  given  by  some 
statute.  It  is  a  well  settled  rule  of  pleading,  that  in  declaring  upon  a 
cause  of  action  arising  under  a  statute,  the  plaintiff  must  state  specially 
every  fact  required  by  the  statute  to  ground  the  action,  so  that  the  court 
may  judge  whether  the  liability  of  the  defendant  under  the  statute  has 
accrued  ;  and  if  this  be  not  done,  the  declaration  is  bad  after  verdict;  Bart- 
lett  V.  Crozier,  17  Johnson,  439;  AVilliams  v,  Hingham  and  Q,uincy  Bridge 
and  Turnpike  Corporation,  4  Pickering,  340. 

It  is  of  the  first  importance  that  the  distinction  in  Rushton  v.  Aspinall 
should  be  preserved,  because  of  another  rule  of  law,  that  a  plaintiff'  is  not 
bound  to  prove  more  than  is  laid  in  his  declaration,  and  if  he  proves  all  that 
is  substantially  alleged  there,  he  must  have  a  verdict,  without  reference  to 
its  legal  sufficiency ;  per  Lord  Mansfield  in  Spieres  v.  Parker,  1  T.  R. 
141.  145.  See  Howell  and  others  v.  M'Coy,  3  Rawle,  256,  and  remarks 
of  Woodworth,  Senator,  in  Bayard  v.  Malcolm,  2  Johnson,  550.  563.  The 
importance  of  keeping  up  the  distinction,  in  this  view,  is  stated  with  great 
clearness  by  Judge  Washington  :  « The  plaintiff  is  not  bound  to  prove 
m6re  than  he  lays  in  his  declaration  ;  and  therefore  we  must  presume  the 
case  stated  in  it  to  have  been  proved  and  no  other.  If  a  proper  case  be  laid, 
but  not  with  sufficient  precision,  and  the  defendant  will  not  at  a  proper 
time  take  advantage  of  the  defect,  the  court,  after  verdict,  will  presume  that 
the  want  of  precision  was  supported  at  the  time,  by  evidence;  because,  &s 
a  proper  ground  for  such  evidence  was  laid,  it  would  have  been  proper  ; 
not  so,  if  no  ground  at  all  is  laid  :"  The  United  States  v.  The  Virgin,  1 
Peters's  C  C.  7.  9  :  accordingly,  in  this  case,  in  an  information  against  a 
vessel  for  receiving  from  another  vessel  bound  to  the  United  States,  goods 
without  permit,  against  the  act  of  Congress,  the  decree  of  the  District  Court, 
on  the  finding  of  the  jury,  against  the  vessel,  was  reversed,  because  the 
libel  did  not  allege  it  to  have  been  done  within  four  leagues  of  the  coast, 
and  without  that  fact,  there  was  no  forfeiture  under  the  act. 

H.  B.  W. 


570  smith's   leading  cases. 


1*340]  -     *MOSTYN  t^  FABRIGAS. 

MICHAELMAS— 15  GEO.  3.  B.  R, 

[reported  cowp.  161-(a)] 

Trespass  and  false  imprisonment  lies  in  England  by  a  native  Minorquin,  against  a  gover- 
nor of  Minorca,  for  such  injury  committed  by  him  in  Mnioica. 
If  the  imprisonment  was  justifiable  the  governor  must  plead  his  authority  spccifically.- 

On  the  8th  of  June,  in  tlie  last  term,  Mr.  Justice  Gould  came  personally 
into  court,  to  acknowledge  his  seal  affixed  to  a  bill  of  exceptions  in  this 
case  ;  and  errors  having  been  assigned  thereupon,  they  were  now  argued. 

This  was  an  action  of  trespass,  brought  in  the  Court  of  Common  Pleas, 
by  Anthony  Fabrigas  against  John  Mostyn,  for  an  assault  and  fa.lse  impri- 
sonment;  in  which  the- plaintiff  declared,  that  the  defendant  on  the  first  of 
S-eptember,  in  the  year  1771,  with  force  and  arms,  &c.,  made  an  assault 
upon  the  said  Anthony  at  Minorca,  (to  wit)  at  London  aforesaid,  in  the 
parish  of  St.  Mary-le-Bow,  in  the  ward  of  Cheap,  and  beat,  wounded,  and 
ill-treated  him,  and  then  and  there  imprisoned  him,  .kept  and  detailed  him 
in  prison  there  for  a  long  time,  (to  wit)  for  the  space  often  montiis,  without 
■any  reasonable  or  probable  cause,  contrary  to  the  laws  and  customs  of  this 
realm,  and  against  the  will  of  the  said  Anthony,  and  compelled  him  to 
depart  from  Minorca  aforesaid,  where  he  was  then  dwelling  and  resident, 
and  carried,  and  caused  to  be  carried,  the  said  Anthony  from  Minorca  afore- 
said, to  Carthagena,  in  the  dominions  of  the  king  of  Spain,  &c.,  to  the 
plaintiff's  damage  of  £10,000. 

The  defendant  pleaded,  1st.  Not  guilty  ;  upon  which  issue  was  joined. 
r*<?<in  ^'^"^b'-  -^  special  justification,  that  the  *defendant  at  the  time,  &c,, 
L  -^  and  long  before,  was  governor  of  the  said  island  of  Minorca,  and 
during  all  that  time  was  invested  with,  and  did  exercise  all  the  powers, 
privileges,  and  authorities,  civil  and  military,  belonging  to  the  government 
of  the  said  island  of  Minorca,  in  parts  beyond  the  seas  ;  ■  and  the  said 
Anthony,  before  the  said  time  when,  &c.-,  to -wit,  on  the  said  1st  of  Septem- 
ber, in  the  year  aforesaid,  at  the  island  of  Minorca  aforesaid,  was  guilty  of 
a  riot,  and  was  endeavouring  to  raise  a  mutinj'-  among  the  inhabitants  of 
the  said  island,  in  breach  of  the  peace:  whereupon  the  said  John,  so  being- 
governor  of  the  said  island  of  Minorca  as  aforesaid,  at  the  said  time,  when, 
&c.,  in  order  to  preserve  tfie  peace  and  government  of  tlie  said  island,  was 
obliged  to,  and  did  then  and  there  order  the  said  Anthony  to  be  banished 
from  the  said  island  of  Minorca ;  and,  in  order  to  banish  the  said  Anthony, 
did  then  and  there  gently  lay  hands  upon  the  sard  Anthony,  and  did  then 
and  there  seize  and  arrest  him,  and  did  keep  and  detain  the  feaid  Anlhonyj 
before  he  could  be  banished  from  the  said  island,  for  a  short  space,  of  time, 
to  wit,  for  the  space  of  six  days,  then  next  following  ;  and  afterwards,  to  wit, 
(«)  See  Briant  v.  Cluttcn,  5  Dowl.  6G. 


M03TYN     V.     FABRIGA9.  5  71 

on  the  7th  of  September,  in  the  year  aforesaid,  at  Minorca  aforesaid,  did 
carry,  and  cause  to  be  carried  the  said  Anthony,  on  board  a  certain  vessel, 
from  the  island  of  Minorca  aforesaid,  to  Carlhagena  aforesaid,  as  it  was 
lawful  for  him  to  do,  for  the  cause  aforesaid  ;  which  are  the  same  making 
the  said  assault  upon  the  said  Anthony,  in  the  first  count  of  the  said  decla- 
ration mentioned,  and  beating,  and  ill-treating  him,  and  imprisoning  him, 
and  keeping  and  detaining  him  in  prison  for  the  said  space  of  time,  in  the 
said  first  count  of  the  said  declaration  mentioned,  and  compelling  the  said 
Anthony  to  depart  from  Minorca  aforesaid,  and  carrying  and  causing  to  be 
carried  the  said  Anthony  from  Minorca  to  Carlhagena,  in  the  dominions  of 
the  King  of  Spain,  whereof  the  said  Anthony  has  above  complained  against 
him,  and  this  he  is  ready  to  verify ;  wherefore  he  prays  judgment,  &c., 
without  this,  that  the  said  John  was  guilty  of  the  said  trespass,  assault,  and 
imprisonment,  at  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of  Cheap,  or 
elsewhere,  out  of  the  said  island  of  Minorca  aforesaid.  Replication  de  injuria 
sua  propria  absq.  tali  causa.  At  trial  the  jury  gave  a  verdict  for  the  rcojoi 
*plaintiir,  upon  both  issues,  with  3,000/.  damages,  and  90/.  costs.  L  "J 
The  substance  of  the  evidence,  as  stated  by  the  bill  of  exceptions,  was  as 
follows :  on  behalf  of  the  plaintiff,  that  the  defendant,  at  the  island  of 
Minorca  on  the  17th  of  September,  1771,  seized  the  plaintiff,  and  without 
any  trial,  imprisoned  hrm  for  the.  space  of  six  days  against  his  will,  and 
banished  him  for  the  space  of  twelve  months  from  the  said  island  of  Mi-norca 
to  Carthagena  in  Spain.  On  behalf  of  the  defendant ;  that  the  plainlifi' 
Avasa  native  of  Minorca,  and  at  the  time  of  seizing,  imprisoning,  and  banish- 
ing him  as  aforesaid,  was  an  inhabitant  of  and  residing  in  the  Arraval  of 
St.  Phillip's  in  the  said  island  ;  that  Minorca  was  ceded  to  the  crown  of 
Great  Britain,  by  the  treaty  of  Utrecht,  in. the  year  1713.  That  the  Minor- 
quins  are  in  general  governed  by  the  Spanish  laws,  but  when  it  serves 
their  purposes  plead  the  English  laws  ;  that  there  are  certain  magistrates, 
called  the  Chief  Justice  Criminal,  and  the  Chief  Justice  Civil,  in  the  said 
island:  that  the  said  island  is  divided  into  four  districts,  exclusive  of  the 
Arraval  of  St.  Phillip's  :  which  the  witness  ahvaj^s  understood  to  be  separate 
and  distinct  from  the  others,  and  under  the  immediate  order  of  the  governor,; 
so  that  no  magistrate  of  Mahon  could  go 'there  to  exercise  any  function, 
without  leave  first  had  from  the  governor  :  that'the  An-aval  of  St.  Phillip's 
is  surrounded  by  a  line  wall  on  one  side,  and  on  the  other  by  the  sea,  and 
is  called  the  Royalty,  where  the  governor  has  greater  power  than -anywhere 
else  in  the  island  ;  and  where  the  judge  cannot  interfere -but.  by  the  gover- 
nor's consent ;  that  nothing  can  be  executed  in  the  Arraval  but  by  the 
governor's  leave,  and  the  judges  have  applied  to  him,  the  witness,  for  the 
governor's  leave  to  execute  process  there.  That  for  the  trial  of  murder, 
and  other  great  offences  committed  within  the  said  Arraval,  upon  applica- 
tion to  the  governor,  he  generally  appoints  the  assesseur  criminal  of  Mahon, 
and  for  lesser  offences,  the  mustasiaph  ;  and  that  the  said  John  Mostyn,  at 
the  time  of  the  seizing,  imprisoning,  and  banishing  the  said  Anthony,  was 
the  governor  of  the  said  island  of  Minorca,  by  virtue  of  certain  letters-patent 
of  his  present  majesty.  Being  so  governor  of  the  said  island,  he  caused  the 
sard  Anthony  to  *be  seized,  imprisoned,  and  banished  as  aforesaid,  (-jco^q-i 
without  any  reasonable  or  probable  cause,  or  any  other  matter  alleged  ^  J 
in  his  plea,  or  any  act  tending  thereto. 


572  smith's   leading   cases. 

This  case  was  argued  this  term,  by  Mr.  Buller,  for  the  plaintiff  in  error, 
and  Mr.  Peckham  for  tlie  defendant.  Afterwards  in  Hilary  term,  1775,  by 
Mr.  Serjeant  Walker,  for  the  plaintiff,  and  Mr.  Serjeant  Glynn,  for  the 
defendant. 

For  the  plaintiffin  error.  There  are  two  questions,  1st.  Whether  in  any 
case  an  action  can  be  maintained  in  this  country  for  an  imprisonment  com- 
mitted at  Minorca,  upon  a  uailve  of  that  place  ? 

2dly.  Supposing  an  action  will  lie  against  any  other  person,  whether  it 
can  be  maintained  against  the  governor,  acting  as  such,  in  the  peculiar 
district  of  the  Arraval  of  St.  Phillip's  ? 

In  the  discussion  of  both  these  questions,  the  constitution  of  the  island  of 
Minorca,  and  of  the  Arraval  of  St.  Phillip's  are  material.  Upon  the  record 
it  appears,  that  by  the  treaty  of  Utrecht,  the  inhabitants  had  their  own 
property  and  laws  preserved  to  them.  The  record  further  states  that  the 
Arraval  of  St  Phillip's  where  the  present  cause  of  action  arose,  is  subject 
to  the  immediate  control  and  order  of  the  governor  only,  and  that  no  judge 
of  the  island  can  execute  any  function  there,  without  the  particular  [eave  of 
the  governor  for  that  purpose.  1st.  If  tliat  be  so,  and  the  lex  loci  differs 
from  the  law  of  this  country  ;  the  lex  loci  must  decide,  and  not  the  law  of 
this  country.  The  case  of  Robinson  v.  Bland,  2  Bur.  1078,  docs  not  interfere 
with  this  position  ;  for  the  doctrine  laid  down  in  that  case  is,  that  where  a 
transaction  is  entered  into  between  British  subjects  with  a  view  to  the  law 
of  England,  the  law  of  the  place  can  never  be  the  rule  which  is  to  govern. 
But  where  an  act  is  done,  as  in-  this  case,  which  by  the  law  of  England 
would  be  a  crime,  but  in  the  country  where  it  is  committed  is  no  crime  at 
all,  the  lex  loci  cannot  but  be  the  rule.  It  was  so  held  by  Lord  Chief  Justice 
Pratt,  in  the  case  of  Pons  v.  Johnson,  and  in  a  like  case  of  Ballister  v. 
Johnson,  sittings  after  Trinity  term,  1765. 

2nd.  In  criminal  cases,  an  offence  committed  in  foreign  parts  cannot, 
-except  by  particular  statutes,  to  be  tried  in  this  country.  1  Ves.  246,  The 
r*344l  ■^'^^''  ^'^*^''^  Company  v.  Campbell.  *If  crimes  committed  abroad 
L  J  cannot  be  tried  here,  much  less  ought  civil  injuries,  because  the 
latter  depend  upon  the  police  and  constitution  of  the  country  where  they 
occur,  and  the  same  conduct  may  be  actionable  in  One  country,  which  is 
justifiable  in  another.  But  in  crimes,  as  murder,  perjury,  and  many  other 
offences,  the  laws  of  most  countries  take  for  their  basis  the  law  of  God,  and 
tlie  law  of  nature;  and,  therefore,  though  the  trial  be  in  a  difierent  country 
from  that  in  which  the  offence  was  committed,  there  is  a  greater  probability 
of  distributing  equal  justice  in  such  cases  than  in  civil  actions.  In  Keilwey, 
202,  it  was  held  that  the  Court  of  Chancery  cannot  entertain  a  suit  for 
dower  in  the  Isle  of  Man,  though  it  is  part  of  the  territorial  dominions  of 
the  crown  of  England.  3rd.  The  cases  where  the  courts  of  Westminster 
have  taken  cognizance  of  transactions  arising  abroad,  seems  to  be  wholly  on 
contracts,  where  the  laws  of  the  foreign  country  have  agreed  with  the  laws 
of  England,  and  between  English  subjects  ;  and  even  there  it  is  done  by  a 
legal  fiction;  namely,  by  supposing  under  a  videlicet,  that  the  cause  of 
action  did  arise  within  this  country,  and  that  the  place  abroad  lay -either  in 
London  or  in  Islington.  But  where  it  appears  upon  the  face  of  the  record, 
that  the  cause  of  action  did  arise  in  foreign  parts,  there  it  has  been  held  that 
the  court  has  no  jurisdiction,  2  Luiw.  946.     Assault  and  false  imprison- 


M  0  S  T  Y  N      V.     F  A  B  R  I  G  A  S.  573 

merit  of  the  plaintiff,  at  Fort  St.  George,  in  the  East  Indies,  in  parts  beyond 
the  seas;  viz.  at  London,  in  the  parish  of  St.  Mary-le-Bow,  in  the  ward 
of  Cheap.  It  was  resolved,  by  the  whole  court,  that  the  declaration  was  ill, 
because  the  trespass  is  supposed  to  "be  committed  at  Fort  St.  George,  in 
parts  beyond  the'seas,  videlicet,  in  London  ;  which  is  repugnant  and  absurd : 
and  it  was  said,  by  the  Chief  Justice,  that  if  a  bond  bore  date  at  Paris,  in 
the  kingdom  of  France,  it  is  not  triable  here.  In  the  present  case,  it  does 
appear  upon  the  record,  that  the  offence  complained  of  was  committed  in 
parts  beyond  the  seas,  and  the  defendant  has  concluded  his  plea  with  a 
traverse,  that  he  was  not  guilty  in  London,  in  the  parish  of  St.  Mary-le- 
Bow,  or  elsewhere  out  of  the  island  of  Minorca.  Besides,  it  stands  admitted 
by  the  plaintiff;  because  if  he  had  thought  fit  to  have  denied  it,  he  should  have 
made  a  new  assignment,  or  have  taken  issue  on  the  place.  There-  ^^045-1 
fore,  *as  Justice  Dodderidge  says,  in  Latch.  4,  the  court  must  take  L  -' 
notice,  that  the  cause  of  action  arose  out  of  their  jurisdiction. 

Before  the  statute  of  Jeofails,  even  in  cases  the  most  transitory,  if  the 
cause  of  action  was  laid  in  London,  and  there  was  a  local  justification,  as  at 
Oxford,  the  cause  must  have  been  tried  at  Oxford,  and  not  in  London.  But 
the  statute  of  Jeofails  does  not  extend  to  Minorca  :  therefore,  this  stands 
entirely  upon  the  common  law  ;  by  which  the  trial  is  bad,  and  the  verdict 
void. 

The  inconveniences  of  entertaining  such  an  action  in  this  country  are 
many,  but  none  can  attend  the  rejecting  it.  For  it  must  be  determined  by 
the  law  of  this  country,  or  by  the  law  of  the  place  where  the  act  was  done. 
If  by  our  law,  it  would  be  the  highest  injustice,  by  making  a  man  who  has 
regulated  his  conduct  by  one  law,  amenable  to  another  totally  opposite.  If 
by  the  law  of  Minorca,  how  is  it  to  be  proved  ?  There  is  no  legal  mode  of 
certifying  it,  no  process  to  compel  the  attendance  of  witnesses,  nor  means  to 
make  them  answer.  The  consequence  would  be  to  encourage  every  dis- 
affected or  mutinous  soldier  to  bring  actions  against  his  officer,  and  to  put 
him  upon  his  defence  without  the  power  of  proving  either  the  law  or  the 
facts  of  his  case. 

Second  point.  If  an  action  would  lie  against  any  other  person,  yet  it 
cannot  be  maintained  against  the  Governor  of  Minorca,  acting  as  such, 
within  the  Arraval  of  St.  Phillip's. 

The  Governor  of  Minorca,  at  least  within  the  district  of  St.  Phillip's,  is 
absolute:  both  the  civil  and  criminal  jurisdiction  vested  in  him  as  the  su- 
preme power,  and  as  such  he  is  accountable  to  none  but  God.  But  sup- 
posing he  were  not  absolute  :  in  this  case,  the  act  complained  of  was  done 
by  him  in  a  judicial  capacity  as  a  criminal  judge;  for  which  no  man  is 
answerable.  1  Salk.  396,'Groenvelt  v.  Burwell ;  2  Mod.  218.  Show.  Pari; 
Cases,  24,  Button  v.  Howell,  are  in  point  to  this  position ;  but  more  parti- 
cularly the  last  case,  where  in  trespass,  assault,  and  false  imprisonment,  the 
defendant  justified  as  Governor  of  Barbadoes,  under  an  order  of  the  council 
of  state  in  Barbadoes,  made  by  himself  and  the  council,  against  the  plaintiff 
(who  was  the  deputy-governor),  for  mal-administration  in  his  office  ;  |-#q4p-| 
*and  the  House  of  Lords  determined,  that  the  action  would  not  lie  L 
here.  All  the  grounds  and  reasons  urged  in  that  case,  and  all  the  incon- 
veniences pointed  out  against  that  action,  hold  strongly  in  the  present.  This 
is  an  action  brought  against  the  defendant  for  what  he  did  as  judge  ;  all  the 


§74  smith's    LEADING     CASES. 

records  and  evidence  which  relate  to  the  transaction,  are  in  Minorca,  and 
cannot  be  brought  here ;  the  laws  there  are  different  from  what  they  are  in 
this  country  ;  and  as  it  is  said  in  the  conclusion  of  that  argument,  govern- 
ment must  be  very  weak  indeed,  and  the  persons  entrusted  with  it  very 
uneasy,  if  they  are  subject  to  be  charged  with  actions  here,  for  what  they 
do  in  that  character  in  those  countries.  Therefore,  unless  that  case  can  be 
materially  distinguished  from  the  present,  it  will  be  an  authority,  and  the 
hio-hest  authority  that  can  be  adduced,  to  show  that  this  action  cannot  be 
maintained  :  and  that  the  plaintiff  in  error  is  entitled  to  the  judgment  of  the 
court. 

Mr.  Feckham,  for  the  defendant  in  error.  1st.  The  objection  to  the  juris- 
diction is  now  too  late  ;  for  whenever  a  party  has  once  submitted  to  the 
jurisdiction  of  the  court,  he  is  forever  after  precluded  from  making  any 
objection  to  it.  Year-book  22  H.  6,  fol.  7  ;  Co.  Litt.  127,  b;  T.  Raym. 
34 ;  1  Mod.  81 ;  2  Mod.  273  ;  2  Lord  Raym.  884  ;  2  Vern.  483. 

Secondly.  An  action  of  trespass  can  be  brought  in  England  for  an  injury 
done  abroad.  It  is  a  transitory  action,  and  may  be  brought  any  where. 
Co.  Lilt.  282  ;  12  Co.  114 ;  Co.  Litt.  261,  b,  where  Lord  Coke  says,  that 
an  obligation  made  beyond  seas,  at  Bourdeaux,  in  France,  may  be  sued 
here  in  England,  in  what  place  the  plaintiff' will.  Captain  Parker  brought 
an  action  of  trespass  and  false  imprisonment  against  LordClive,  for  injuries 
received  in  Lidia,  and  it  was  never  doubted  but  that  the  action  did  lie.  And 
at  this  time  there  is  an  action  depending  between  Gregory  Cojim,aul,  an 
Armenian  merchant,  and  Governor  Verelst,  in  which  the  cause  of  action 
arose  in  Bengal,  A  bill  was  filed  by  the  Governor  in  the  Exchequer  for 
an  injunction,  which  was  granted;  but  on  appeal  to  the  House  of  Lords, 
the  injunction  was  dissolved;  therefore,  the  Supreme  Court  of  Judicature, 
by  dissolvirrg  the  injunction,  acknowledged  that  an  action  of  trespass  could 
be  maintained  in  England,  though  the  cause  of  action  arose  in  India. 

^  -  Thirdly.  There  is  no  disability  in  the  plaintiff  which  *incapa- 
L  -^  citates  him  from  bringing  this  action.  Every  person  born  within 
the  ligeance  of  the  king,  though  without  the  realm,  is  a  natural-born  subject, 
and,  as  such,  is  entitled  to  sue  in  the  king's  courts.  Co.  Litt.  129.  The 
plaintiff,  though  born  in  a  conquered  country,  is  a  subject,  and  within  the 
ligeance  of  the  king.     2  Burr.  858. 

In  1  Salk.  404,  upon  a  bill  to  foreclose  a  mortgage  in  the  island  of  Sarke, 
the  defendants  pleaded  to  the  jurisdiction,  viz.,  that  the  island  was  governed 
by  the  laws  of  Normandy,  and  that  the  party  ought  to  sue  in  the  courts  of 
the  island,  and  appeal.  But  Lord  Keeper  Wright  overruled  the  plea  ; 
"Otherwise  there  might  be  a  failure  of  justice,  if  the  chancery  could  not 
hold. plea  in  such  case,  the  party  being  here."  In  this  case  both  the  parties 
are  upon  the  spot.  In  the  case  of  Ramkissenseat  v.  Barker,  upon  a  bill  fil- 
ed against  the  representatives  of  the  Governor  of  Patna,  for  money  due  to 
him  as  his  Banyan  ;.  the  defendant  pleaded,  that  the  plaintiff  was  an  alien 
born,  and  an  alien  infidel,  and  therefore  could  haA-e  no  suit  here.  But  Lord 
Hardwicke  said,  "as  the  plaintiff's  Avas  a  mere  personal  demand,  it  was 
extremely  clear  that  he  might  bring  a  bill  in  this  court."  And  he  over- 
ruled the  defendant's  plea  without  hearing  one  counsel  on  either  side. 

The  case  of  the  Countess  of  Derby,  Keilway,  202,  does  not  affect  the 
present  question  ;  for  that  was  a  claim  of  dower  ;  which  is  a  local  action, 


MOSTYN     V.     FABRIGAS,  575 

and  cannot,  as  a  transitory  action,  be  tried  any  where.  The  other  cases 
from  Latch  and  Lulwyche  were  either  local  actions,  or  questions  upon 
demurrer;  therefore,  not  applicable  to  the  case  before  the  court;  for  a 
party  may  avail  himself  of  many  things  upon  a  demurrer,  which  he  cannot 
by  a  writ  of  error.  The  true  distinction  is  between  transitory  and  local 
actions;  the  former  of  which  maybe  tried  any  where  ;  the  latter  cannot, 
and  this  is  a  transitory  action.  But  ihere  is  one  case  which  more  particu- 
larly points  out  the  distinction,  which  is  the  case  of  Mr.  Skinner,  referred 
to  the  twelve  Judges  from  the  council  board.  In  the  year  of  1657,  when 
trade  was  open  to  the  East  Indies,  he  possessed  himself  of  a  house  and 
warehouse,  which  he  filled  with  goods  at  Jamby,  and  he  purchased  of  the 
king  at  Great  Jamby  the  islands  of  Baretha.  The  agents  of  the  East  India 
Company  assaulted  his  person-,  seized  his  warehouse,  carried  away  his 
goods,  and  took  and  *possessed  themselves  of  the  islands  of  Baretha.  r*q4Q-] 
Upon  this  case  it  was  propounded  to  the  Judges,  by  an  order  from  L  -^ 
the  king  in  council,  dated  the  12th  of  April,  1665,  "  Whether  Mr.  Skinner 
could  have  a  full  relief  in  any  ordinary  court  of  law  ?"  Their  opinion  was, 
"That  his  majesty's  ordinary  courts  of  Justice  at  Westminster  can  give 
relief  for  taking  away  and  spoiling  his  ship,  goods  and  papers,  and  assauhing 
and  wounding  his  person,  notwithstanding  the  same  was  done  beyond  th^ 
seas.  But  that  as  to  the  detaining  and  possessing  of  the  house  and  islands 
in  the  case  mentioned,  he  is  not  relievable  in  any  ordinary  court  of  justice." 
It  is  manifest  from  this  case  that  the  twelve  judges  held,  that  an  action 
might  be  maintained  here  for  spoiling  his  goods,  and  seizing  his  person, 
because  an  action  of  trespass  is  a  transitory  action  :  but  an  action  could 
not  be  maintained  for  possessing  the  house  and  land,  because  it  is  a  local 
action. 

Fourth  point.  It  is  contended  that  General  Mostyn  governs  as  all  abso- 
lute sovereigns  do,  and  that  stet  pro  ratione  voluntas  is  the  only  rule  of  his 
conduct.  .From  whom  does  the  governor  derive  his  despotism?  Not  from 
the  king,  for  the  king  has  no  such  power,  and  therefore  cannot  delegate  it 
to  another.  Many  cases  have  been  cited,  and  much  argument  has  been 
adduced,  to  prave  that  a  man  is  not  responsible  in  an  action  for  what  he  has 
done  as  a  judge;  and  the  case  of  Dutton  y.  Howell  has  been  much  dwelt 
upon  ;  but  that  case  has  not  the  least  resemblance  to  the  present.  The 
ground  of  that  decision  was,  that  Sir  John  Dutton  was  acting  with  his  coun- 
cil in  a  judicial  capacit}^  in  a  matter  of  public  accusation,  and  agreeable  to 
the  laws  of  Barbadoes,  and  only  let  the  law  take  its  course  against  a  crimi- 
nal. But  Governor  Mostyn  neither  sat  as  a  military  nor  as  a  civil  judge  ; 
he  heard  no  accusation,  he'^  entered  into  no  proof;  he  did  not  even  see  the 
prisoner;  but  in  direct  opposition  to  all  laws,  and  in  violation  of  the  first 
principles  of  justice,  followed  no  rule  but  his  own  arbitrary  will,  and  went 
out  of  his  way  to  prosecute  the  innocent.  If  that  be  so,  he  is  responsible 
for  the  injury  he  has  done  :  and  so  was  the  opinion  of  the  court  of  C.  B., 
as  delivered  by  Lord  Chief  Justice  De  Grey,  on  the  motion  for  a  new  trial. 
If  the  governor  had  secured  him,  said  his  lordship,,  nayj  if  he  had  barely 
committed  him,  that  he  might  have  been  *amenable  to  justice  :  r-jj^q^q-i 
and  if  he  had  immediately  ordered  a  prosecution  upon  any  part  of  L  -' 
his  conduct,  it  would  have  been  another  question  ;  but  the  governor  knew 
he  could  no  more  imprison  him  for  a  twelvemonth  (and  the  banishment  for 


576  smith's   leading   cases. 

a  year  is  a  continuation  of  the  original  imprisonment,)  than  he  could  inflict 
the  torture.  Lord  Bellamont's  case,  2  Salk.  625,  Pas.  12  W.  3,  is  a  case 
in  point  to  show  that  a  governor  abroad  is  responsible  here :  and  the  stat. 
12  W.  3,  passed  the  same  year,  for  making  governors  abroad  amenable 
here  in  criminal  cases  affords  a  strong  inference  that  they  were  already 
answerable  for  civil  injuries, or  the  legislature  would  at  the  same  time  have 
provided  against  that  mischief.  But  there  is  a  late  decision  not  distinguish- 
able from  the  case  in  question.  Comyn  v.  Sabine,  Governor  of  Gibraltar, 
Mich.  Geo.  2.  The  declaration  stated,  that  the  plaintiff  was  a  master  car- 
penter of  the  office  of  ordnance  at  Gibraltar  ;  that  Governor  Sabine  tried 
him  by  a  court  martial,  to  which  he  was  not  subject :  that  he  underwent  a 
sentence  of  500  lashes  ;'and  that  he  was  compelled  to  depart  from  Gibral- 
tar, which  he  laid  to  his  damage  of  10,000/.  The  defendant  pleaded  not 
guilty,  and  justified  under  the  sentence  of  the  caurt-martial.  There  was  a 
verdict  for  the  plaintifT,  with  700/.  damages.  A  writ  of  error  was  brought, 
but  the  judgment  affirmed. 

With  respect  to  the  Arraval  of  St,  Phillip's  being  a  peculiar  district, 
under  the  immediate  authority  of  the  governor  alone,  the  opinion  of  Lord 
Chief  Justice  De  Grey,  upon  the  motion  for  a  new.  trial,  is  a  complete 
answer:  "One  of  the  witnesses  in  the  cause,"  said  his  lordship,  "repre- 
sented to  the  jury,  that  in  some  particular  cases,  especially  in  criminal  mat- 
ters, the  governor  resident  upon  the  island  does  exercise  a  legislative  power. 
It  was  gross  ignorance  in  that  person  to  imagine  such  a  thing  ;  I  may 
say  it  was  impossible,  that  a  man  who  lived  upon  the  island  in  the  station 
he  had  done,  should  not  know  better,  than  to  think  that  the  governor  had 
a  civil  arid  criminal  power  in  him.  The  governor  is  the  king's  servant  ; 
his  commission  is  from  him,  and  he  is  to  execute  the  power  he  is  invested 
with  under  that  commission;  which  is,  to  execute  the  laws  "of  Minorca, 
under  such  regulations  as  the  king  shall  make  in  council.  It  was  a 
vain  imagination  in  the  witnesses  to  say,  that  there  were  five  terminos 
r*^^n"l  ^"  ^^^  island  of  Minorca  :  I  *  have  at  various  times  seen  a  mul- 
1-  -^  titude  of  authentic  documents  and  papers  relative  to  that  island  ; 

and  I  do  not  believe  that,  in  any  one  of  them  the  idea  of  the  Arraval 
of  St.  Phillip's  being  a  distinct  jurisdiction  was  eA'er  started.  Mahon  is 
one  of  the  four  terminos,  and  St.  Phillip's,  and  all  the  district  about  it,  is 
comprehended  within  that  termino  ;  but  to  suppose  that  there  is  a  distinct 
jurisdiction,  separate  from  the  government  of  the  island,  is  ridiculous  and 
absurd."  Therefore,  as  the  defendant  by  pleading  in  chief,  and  submitting 
his  cause  to  the  decision  of  an  English  jury,  is  too  late  in  his  objection  to 
the  jurisdiction  of  the  court ;  as  no  disability  incapacitates  the  plaintifffrom 
seeking  redress  here ;  and  as  the  action  which  is  a  transitory  one  is  clearly 
maintainable  in  this  country,  though  the  cause  of  action  arose  abroad,  the 
judgment  ought  to  be  affirmed.  Should  it  be  reversed,  I  fear  the  public, 
with  too  much  truth,  will  apply  the  lines  of  the  Roman  satirist,  on  the  drun- 
ken Marius,  to  the  present  occasion  ;  and  they  will  say  of  Governor  Mostyn, 
as  was  formerly  said  of  him, 

Hie  est  damnatus  inani  judicio ; 
and  to  the  Minorquins,if  Mr.  Fabrigas  should  be  deprived  of  that  satisfac- 
tion in  damages,  which  the  jury  gave  him, 

At  tu  victrix  provincia  ploras. 


MOSTTN     V.     FABRIGAS.  577 

Lord  Mansfield. — Let  it  stand  for  another  argument.  It  has  been  ex- 
tremely well  argued  on  both  sides. 

On  Friday,  27th  January,  1775,  it  was  very  ably  argued  by  Mr.  Serjeant 
Glynn  for  the  plaintiff,  and  by  Mr.  Serjeant  Walker  for  the  defendant. 

Lord  Mansfield. — This  is  an  action  brought  by  the  plaintiff  against  the 
defendant,  for  an  assault  and  false  imprisonment ;  and  part  of  the  complaint 
made  being  for  banishing  him  from  the  island  of  Minorca  to  Carthagena  in 
Spain,  it  was  necessary  for  the  plaintiff,  in  his  declaration,  to  take  notice  of 
the  real  place  where  the  cause  of  action  arose  :  therefore,  he  has  stated  it  to 
be  in  Minorca  ;  with  a  videlicet,  at  London,  in  the  parish  of  St.  Mary-Ie-bow, 
in  the  ward  of  Cheap.  Had  it  not  been  for  that  particular  requisite,  he 
might  have  stated  it  to  have  been  in  the  county  of  Middlesex.  To  this 
declaration  the  defendant  put  in  two  pleas.  First,  "  not  guilty  ;"  secondly, 
that  he  was  Governor  of  Minorca,  by  letters-patent  from  the  crown  ;  f-itsqci-] 
*that  the  plaintiff  was  raising  a  sedition  and  mutiny;  and  that  in  L  -J 
consequence  of  such  sedition  and  mutiny,  he  did  imprison  him,  and  send  him 
out  of  the  island  ;  which,  as  governor,  being  invested  with  all  the  privileges, 
rights,  &c.,  of  governor,  he  alleges  he  had  a  right  to  do.  To  this  plea  the 
plaintiff  does  not  demur,  nor  does  he  deny  that  it  would  be  a  justification  in 
case  it  were  true  :  but  he  denies  the  truth  of  the  fact :  and  puts  in  issue 
whether  the  fact  of  the  plea  is  true.  The  plea  avers  that  the  assault  for 
which  the  action  was  brought  arose  in  the  island  of  Minorca,  out  of  the  realm 
of  England,  and  nowhere  else.  To  this  the  plaintiff  has  made  no  new 
assignment,  and  therefore  by  his  replication  he  admits  the  locality  of  the 
cause  of  action. 

Thus  it  stood  on  the  pleadings.  At  the  trial  the  plaintiff  went  into  the 
evidence  of  his  case,  and  the  defendant  into  evidence  of  his;  but  on  behalf 
of  the  defendant,  evidence  different  from  the  facts  alleged  in  his  plea  of  jus- 
tification was  given,  to  show  that  the  Arraval  of  St.  Phillip's,  where  the 
injury  complained  of  was  done,  was  not  within  either  of  the  four  precincts, 
but  is  a  district  of  itself,  more  immediately  under  the  power  of -the  gover- 
nor; and  that  no  judge  of  the  island  can  exercise  jurisdiction  there,  without 
a  special  appointment  from  him.  Upon  the  facts  of  Uie  case,  the  judge  left 
it  to  the  jury,  who  found  a  verdict  for  the  plaintiff,  with  £3000  damages. 
The  defendant  has  tendered  a  bill  of  exceptions,  upon  which  bill  of  excep- 
tions the  cause  comes  before  us:  and  the  great  difficulty  I  have  had  upon 
both  the  arguments,  has  been  to  be  able  clearly  to  comprehend  what  the 
question  is,  which  is  meant  seriously  to  be  brought  before  the  court. 

If  I  understand  the  counsel  for  Governor  Mostyn  right,  what  they  say  is 
this  :  The  plea  of  not  guilty  is  totally  immaterial;  and  so  is  the  plea  of  jus- 
tification :  because  upon  the  plaintifF's  own  showing  it  appears,  1st,  that  the 
cause  of  action  arose  in  Minorca,  out  of  the  realm ;  2ndly,  that  the  defendant 
was  governor  of  Minorca,  and  by  virtue  of  such  his  authority  imprisoned  the 
plaintiff.  From  thence  it  is  argued,  that  the  judge  who  tried  the  cause 
ought  to  have  refused  any  evidence  whatsoever,  and  have  directed  the  jury 
to  find  for  the  defendant  :  and  three  reasons  have  been  assigned.  One, 
insisted  upon  in  the  former  argument,  was,  that  the  plaintiff,  being  a  Minor- 
quin,  is  incapacitated  from  *bringing an  action  in  the  king's  courts  in  p.j,q-.,T 
England.     To  dispose  of  that  objection  at  once,  I  shall  only  say,  it  L       ^J 

Vol.  I 37 


678  smith's   leading   cases. 

is  wisely  abandoned  to-day;  for  it  is  impossible  there  ever  could  exist  a 
doubt,  but  that  a  subject  born  in  Minorca  has  as  good  a  right  to  appeal  to 
the  king's  courts  of  justice  as  one  who  is  born  within  the  sound  of  Bow  bell: 
and  the  objection  made  in  this  case,  of  its  not  being  stated  on  the  record  that 
the  plaintiff  was  born  since  the  treaty  of  Utrecht,  makes  no  difference.  The 
two  other  grounds  are,  1st,  That  the  defendant  being  governor  of  Minorca  is 
answerable  for  no  injury  whatsoever  done  by  him  in  that  capacity  :  2ndly, 
That  the  injury  being  done  at  Minorca,  out  of  the  realm,  is  not  cognizable 
by  the  king's  courts  in  England. — As  to  the  first,  nothing  is  so  clear  as  that 
lo  an  action  of  this  kind,  the  defendant,  if  he  has  any  justification,  must 
plead  it ;  and  there  is  nothing  more  clear,  than  that  if  the  court  has  not  a 
general  jurisdiction  of  the  subject-matter,  he  must  plead  to  the  jurisdiction, 
and  cannot  take  advantage  of  it  upon  the  general  issue.  Therefore,  by  the 
law  of  England,  if  an  action  be  brought  against  a  judge  of  record  for  an  act 
done  by  him  in  his  judicial  capacity,  he  may  plead  that  he  did  it  as  judge 
of  record,  and  that  will  be  a  complete  justification.  So  in  this  case,  if  the 
injury  complained  of  had  been  done  by  the  defendant  as  a  judge,  though  it 
arose  in  a  foreign  country,  where  the  technical  distinction  of  a  court  of  record 
does  not  exist,  yet  silting  as  a  judge  in  a  court  of  justice,  subject  to  a  supe- 
rior review,  he  would  be  within  the  reason  of  the  rule  which  the  law  of 
England  says  shall  be  a  justification  ;  but  then  it  must  be  pleaded.t  Here 
no  such  matter  is  pleaded,  nor  is  it  even  in  evidence  that  he  sat  as  a  judge 
of  a  court  of  justice.  Therefore  I  lay  out  of  the  case  every  thing  relative  to 
the  Arraval  of  St.  Phillip's. 

The  first  point,  then  upon  this  ground  is,  the  sacredness  of  the  defend- 
ant's person  as  governor  ;  if  it  were  true  that  the  law  makes  him  that  sacred 
character,  he  must  plead  it,  and  set  forth  his  commission  as  special  matter 
of  justification  ;  because  prima  facie  the  court  has  jurisdiction.  But  I  will 
not  rest  the  answer  upon  this  only.  It  has  been  insisted  by  way  of  distinc- 
tion, that  supposing  an  action  will  lie  for  an  injury  of  this  kind  committed 
by  one  individual  against  another,  in  a  country  beyond  the  seas,  but  within 
^  -,  *the  dominion  of  the  crown  of  England,  yet  it  shall  not  emphatically 
L  -'  lie  against  the  governor.  In  answer  to  which  I  say  that,  for  many 
reasons,  if  it  did  not  lie  against  any  other  man,  it  shall  most  emphatically 
lie  against  the  governor. 

■  In  every  plea  to  the  jurisdiction,  you  must  state  another  jurisdiction  ; 
therefore,  if  an  action  is  brought  here  for  a  matter  arising  in  Wales,  to  bar 
the  remedy  sought  in  this  court,  you  must  show  the  jurisdiction  of  the  court 
of  Wales  ;  and  in  every  case  to  repel  the  jurisdiction  of  the  king's  court, 
you  must  show  a  more  proper  and  more  sufficient  jurisdiction  ;  for  if  there 
is  no  other  mode  of  trial,  that  alone  will  give  the  king's  court  a  jurisdiction. 
Now,  in  this  case,  no  other  jurisdiction  is  shown,  even  so  much  as  in  argu- 
ment. And  if  the  king's  courts  of  justice  cannot  hold  plea  in  such  case, 
no  other  court  can  do  it.  For  it  is  truly  said  that  a  governor  is  in  the  nature 
of  a  viceroy  ;  and  therefore  locally,  during  his  government,  no  civil  or 
criminal  action  will  lie  against  him :  the  reason  is  because  upon  process 

t  See  Salk.  306  ;  Vaugh.  138  ;  12  C.  24  ;  Lord  Raym.  466  ;  6  T.  R.  449  ;  3  M.  &  S. 
411.  See  too  1  T.R.  513,  514.535.550.493.  784.  4  Taunt.  67 ;  2  C.  &  P.  146.  1  B.  & 
C.  163.  4B.  &C.292. 


MOSTVN    V.     FABRIGAS.  579 

he  would  be  subject  to  imprisonment.  But  here  the  injury  is  said  to  have 
happened  in  the  Arraval  of  St.  Phillip's,  where,  without  his  leave,  no  juris- 
diction can  exist.  If  that  be  so,  there  can  be  no  remedy  whatsoever,  if  it 
is  not  in  the  king's  courts  :  because  when  he  is  out  of  the  government,  and 
is  returned  with  his  property  into  this  country,  there  are  not  even  his  effects 
left  in  the  island  to  be  attached. 

Another  very  strong  reason,  which  was  alluded  to  by  Mr.  Serjeant 
Glynn,  would  alone  be  decisive  ;  and  it  is  this :  that  though  the  charge 
brought  against  him  is  for  a  civil  injury,  yet  it  is  likewise  of  a  criminal 
nature;  because  it  is  in  abuse  of  the  authority  delegated  to  him  by  the 
king's  letters-patent,  under  the  great  seal.  Now,  if  everything  committed 
within  a  dominion  is  triable  by  the  courts  within  that  dominion,  yet  the 
effect  or  extent  of  the  king's  letters-patent,  which  gave  the  authority,  caa 
only  be  tried  in  the  king's  courts ;  for  no  question  Concerning  the  seignory 
can  be  tried  within  the  seignory  itself.  Therefore,  where  a  question 
respecting  the  seignory  arises  in  the  proprietary  governments,  or  between 
two  provinces  of  America,  or  in  the  Isle  of  Man,  it  is  cognizable  by  the 
king's  court  in  England  only.  In  the  case  of  the  Isle  of  Man,  it  was  so 
*decided  in  the  lime  of  Glueen  Elizabeth,  by  the  Chief  Justice  and  f-oK^-i 
many  of  the  judges.  So  that  emphatically  the  governor  must  be  L  -^ 
tried  in  England,  to  see  whether  he  has  exercised  the  authority  dele- 
gated to  him  by  the  letters-patent,  legally  and  properly;  or  whether  he 
has  abused  it,  in  violation  of  the  laws  of  England,  and  the  trust  so  reposed 
in  him. 

It  does  not  follow  from  hence,  that  let  the  cause  of  action  arise  where  it 
may,  a  man  is  not  entitled  to  make  use  of  every  justification  his  case  will 
admit  of,  which  ought  to  be  a  defence  to  him.  If  he  has  acted  right  accord- 
ing to  the  authority  with  which  he  is  invested,  he  must  lay  it  before  the 
court  by  way  of  plea,  and  the  court  will  exercise  their  judgment  whether 
it  is  a  sufficient  justification  or  not.  In  this  case,  if  the  justification  had 
been  proved,  the  court  might  have  considered  it  as  a  sufficient  answer: 
and,  if  the  nature  of  the  case  would  have  allowed  of  it,  might  have  adjudged, 
that  the  raising  a  mutiny  was  a  good  ground  for  such  a  summary  proceed- 
ing. I  can  conceive  cases  in  time  of  war  in  which  a  governor  would  be 
-justified,  though  he  acted  very  arbitrarily,  in  which  he  could  not  be  justifi- 
ed in  time  of  peace.  Suppose,  during  a  seige  or  upon  an  invasion  of 
Minorca,  the  governor  should  judge  it  proper  to  send  a  hundred  of  the 
inhabitants  out  of  the  island,  from  motives  of  real  and  general  expediency ; 
or  suppose,  upon  a  general  suspicion,  he  should  take  people  up  as  spies  ; 
upon  proper  circumstances  laid  before  the  court,  it  would  be  very  fit  to  see 
whether  he  had  acted  as  the  governor  of  a  garrison  ought,  according  to  the 
circumstances  of  the  case.  But  it  is  objected,  supposing  the  defendant  to 
have  acted  as  the  Spanish  governor  was  empowered  to  do  before,  how  is  it 
to  be  known  here  that  by  the  laws  and  constitution  of  Spain  he  was  author- 
ised so  to  act  ?  The  way  of  knowing  foreign  laws  is,  by  admitting  them  to 
be  proved  as  facts,  and  the  court  must  assist  the  jury  in  ascertaining  what 
the  law  is.  For  instance,  if  there  is  a  French  settlement,  the  construction 
of  which  depends  upon  the  custom  of  Paris,  witnesses  must  be  received  to 
explain  what  the  custom  is  ;  as  evidence  is  received  of  customs  in  respect 
of  trade.   There  is  a  case  of  the  kind  I  have  just  stated.   So  in  the  supreme 


580  smith's   leading   cases. 

resort  before  the  king  in  council,  the  privy  council  determines  all  cases  that 
^  ^  arise  in  the  plantations  in  Gibraltar,  or  Minorca,  in  Jersey,  or 
L  -I  Guernsey  ;  and  they  inform  themselves,  *by  having  the  law  slated 
to  them. — As  to  the  suggestions  with  regard  to  the  difficulty  of  bringing 
witnesses,  the  court  must  take  care  that  the  defendant  is  not  surprised,  and 
that  he  has  a  fair  opportunity  of  bringing  his  evidence,  if  it  is  a  case 
proper  in  other  respects  for  the  jurisdiction  of  the  court.  There  may  be 
some  cases  arising  abroad,  which  may  not  be  fit  to  be  tried  here  ;  but  that 
cannot  be  the  case  of  a  governor,  injuring  a  man  contrary  to  the  duty  of 
his  office,  and  in  violation  of  the  trust  reposed  in  him  by  the  king's  com- 
mission. 

If  he  wants  the  testimony  of  witnesses  whom  he  cannot  compel  to  attend, 
the  court  may  do  what  this  court  did  in  the  case  of  a  criminal  prosecution 
of  a  woman  who  had  received  a  pension  as  an  officer's  widow ;  and  it 
was  charged  in  the  indictment,  that  she  never  waS;  married  to  him.  She 
alleged  a  marriage  in  Scotland,  but  that  she  could  not  compel  her  witnesses 
to  come  up,  to  give  evidence.  The  court  obliged  the  prosecutor  to  consent 
that  the  witnesses  might  be  examined  before  any  of  the  judges  of  the  court 
of  session,  or  any  of  the  barons  of  the  court  of  exchequer  in  Scotland,  and 
that  the  depositions  so  taken  should  be  read  at  the  trial.  And  they  declared, 
that  they  would  have  put  off  the  trial  of  the  indictment  from  time  to  time, 
forever,  unless  the  prosecutor  had  so  consented.  The  witnesses  were  so 
examined  before  the  lord  president  of  the  court  of  session. 

It  is  a  matter  of  course  in  aid  of  a  trial  at  law,  to  apply  to  a  court  of 
equity  for  a  commission  and  injunction  in  the  meantime  ;  and  where  a  real 
ground  is  laid,  the  court  will  take  care  that  justice  is  done  to  the  defendant 
as  well  as  to  the  plainlifi'.t  Therefore,  in  every  light  in  which  I  see  the 
subject,  I  am  of  opinion  that  the  action  holds  emphatically  against  the 
governor,  if  it  did  not  hold  in  the  case  of  any  other  person.  If  so,  he  is 
accountable  in  this  court  or  he  is"  accountable  nowhere,  for  the  king  in 
council  has  no  jurisdiction.  Complaints  made  to  the  king  in  council  tend 
to  remove  the  governor,  or  to  take  from  him  any  commission,  which  he 
holds  during  the  pleasure  of  the  crown.  But  if  he  is  in  England,  and  holds 
nothing  at  the  pleasure  of  the  crown,  they  have  no  jurisdiction  to  make 
.^  reparation,  by  giving  damages,  or  to  punish  him  in  any  shape  for  the 

L  -I  injury  committed.  Therefore  to  lay  down  in  an  *English  court  of 
justice  such  a  monstrous  proposition,  as  that  a  governor  acting  by  virtue 
of  letters-patent  under  the  great  seal  is  accountable  only  to  God  and  his  own 
conscience  ;  that  he  is  absolutely  despotic,  and  can  spoil,  plunder,  and  affect 
his  majesty's  subjects,  both  in  their  liberty  and  property,  with  impunity,  is 
a  doctrine  that  cannot  be  maintained. 

In  Lord  Bellamont's  case,  2  Salk.  625,  cited  by  Mr.  Peckham,  a  motion 
was  made  for  a  trial  at  bar,  and  granted  because  the  attorney  general  was  to 
defend  it  on  the  part  of  the  king  ;  which  shows  plainly  that  such  an  action 

t  And  now  by  stat.  1  W.  4,  c.  22,  courts  of  common  law  can  order  the  examination 
witnesses  to  be  taken  in  writing  whether  they  reside  in  a  foreign  countr)'^,  a  colony,  or  in 
England,  but  under  circumstances  which  disable  them  from  attending  to  give  evidence. 
See  Doe  v.  Pattison,  3  DowL  ;  Bain  v.  De  Vetrie,  3  Dowl.  517  ;  Bridges  v.  Fisher,  1  Bing. 
N.  C.  512  ;  Prince  v.  Samo,  4  Dowl.  5 ;  Bourdeaux  v.  Rowe,  1  Bing.  N.  C.  721 ;  Duckett 
V.  Williams,  1  Tyrwh.  502  ;  Wainwright  v.  Bland,  3  Dowl.  653. 


MOSTYN    V.     FABRIGAS.  581 

existed.  And  in  Way  v.  Yally,  6  Mod.  195,  Justice  Powell  says,  that  an 
action  of  false  imprisonment  has  been  brought  here  against  a  governor  of 
Jamaica,  for  an  imprisonment  there,  and  the  laws  of  the  country  were  given 
in  evidence.  The  governor  of  Jamaica  in  that  case  never  thoughtjhat  he 
Avas  not  amenable.  He  defended  himself,  and  possibly  showed,  by  the  laws 
of  the  country,  an  act  of  the  assembly  which  justified  that  imprisonment, 
and  the  court  received  it  as  they  ought  to  do.  For  whatever  is  a  justifica- 
tion in  the  place  where  the  thing  is  done,  ought  to  be  a  justification  where 
the  case  is  tried.  I  remember,  early  in  my  time,  being  counsel  in  an 
action  brought  by  a  carpenter  in  a  train  of  artillery,  against  Governor 
Sabine,  who  was  governor  of  Gibraltar,  and  who  had  barely  confirmed  the 
sentence  of  a  court-martial,  by  which  the  plaintiff  had  been  tried,  and  sen- 
tenced to  be  whipped.  The  governor  was  very  ably  defended,  but  nobody 
ever  thought  that  the  action  would  not  lie  ;  and  it  being  proved  at  the  trial, 
that  the  tradesmen  who  follow  the  train  are  not  liable  to  martial  law,  the 
court  Avere  of  that  opinion,  and  the  'jury  accordingly  found  the  defendant 
guilty  of  the  trespass,  as  having  had  a  share  in  the  sentence  ;  and  gave  500/. 
damages. 

The  next  objection  which  has  been  made  is  a  general  objection,  with 
regard  to  the  matter  arising  abroad  ;  namely,  that  as  the  cause  of  action 
arose  abroad,  it  cannot  be  tried  here  in  England. 

There  is  a  formal  and  a  substantial  distinction  as  to  the  locality  of  trials. 
I  state  them  as  different  things:  the  substantial  distinction  is,  where  the 
proceeding  is  in  rem,  and  where  the  effect  of  the  judgment  cannot  be  had, 
if  it  is  laid  in  a  wrong  place.  This  is  the  case  of  all  ejectments  p^gg^-i 
*where  possession  is  to  be  delivered  by  the  sheriff  of  the  county  ;  L 
and  as  trials  in  England  are  in  particular  counties,  the  officers  are  county 
officers  ;  therefore  the  judgment  could  not  have  effect,  if  the  action  was  not 
laid  in  the  proper  county. 

With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a  substantial 
distinction  of  locality  too  ;  for  there  are  some  cases  that  arise  out  of  the 
realm  which  ought  not  to  be  tried  anywhere  but  in  the  country  where  they 
arise  ;  as  is  the  case  alluded  to  by  Serjeant  Walker  ;  if  two  persons  fight 
in  France,  and  both  happening  casually  to  be  here,  one  should  bring  an 
action  of  assault  against  the  other,  it  might  be  a  doubt  whether  such  an 
action  could  be  maintained  here  ;  because,  though  it  is  not  a  criminal  pro- 
secution, it  must  be  laid  to  be  against  the  peace  of  the  king  ;t  but  the 
breach  of  the  peace  is  merely  local,  though  the  trespass  against  the  person 
is  transitory.  Therefore,  without  giving  any  opinion,  it  might  perhaps  be 
triable  only  where  both  parties  at  the  time  were  subjects.  So  if  an  action 
were  brought  relative  to  an  estate  is  a  foreign  country,  where  the  question 
was  a  matter  of  title  only  and  not  of  damages,  there  might  be  a  solid  dis- 
tinction of  locality. 


+  But  it  seems  questionable  whether  the  words  contra  paeem  be  now  necessary  in  a 
declaration  of  trespass,  for  the  fine  to  tiic  king  is  abolished;  and  thougli  in  Day  v.  Mus- 
kelt,  Lord  Raymond,  985,  Lord  Holt  said  that  it  was  not  the  contra  pacem,  but  the  vi  et 
armis,  that  may  now  be  omitted,  yet  quiEre  whetlier  they  can  be  held  to  stand  on  a  different 
fooling-,  especially  since  reg.  Hil.  1832,  has  substituted  the  single  word  'trespass'  for  the 
recital  of  the  writ,  which  formerly  rendered  the  omission  of  contra  pacem  at  the  end  of  the 
declaration  inmaterial.     See  Com.  Di.  Pleader,  3  M.  8._ 


582  smith's  leading  cases. 

But  there  is  likewise  a  formal  distinction,  which  arises  from  the  mode  of 
trial;  for  trials  in  England  being  by  jury,  and  the  kingdom  being  divided 
into  counties,  and  each  county  considered  as  a  separate  district  or  princi- 
pality, it  is  absolutely  necessary  that  there  should  be  some  county  where  the 
action  is  brought  in  particular,  that  there  may  be  a  process  to  the  sheriff  of 
that  county,  to  bring  a  jury  from  thence  to  try  it.  This  matter  of  form  goes 
to  all  cases  that  arise  abroad  ;  but  the  law  makes  a  distinction  between  tran- 
sitory actions  and  local  actions.  If  the  matter  which  is  the  cause  of  a  tran- 
sitory action  arises  within  the  realm,  it  may  be  laid  in  any  county — the 
place  is  not  material ;  and  if  an  imprisonment  in  Middlesex,  it  may  be  laid 
in  Surrey,  and  though  proved  to  be  done  in  Middlesex,  the  place  not  being 
material,  it  does  not  at  all  prevent  the  plaintiff'  recovering  damages;  the 
place  of  transitory  actions  is  never  material,  except  where  by  particular 
acts  of  parliament  it  is  made  so  ;  as  in  the  case  of  churchwardens  and  con- 
stables, and  other  cases  which  require  the  action  to  be  brought  in  the  county. 
The  parties,  upon  sufficient  ground,  have  an  opportunity  of  applying  to  the 
-.  court  in  time  to  change  the  venue ;  but  *if  they  go  to  trial  without 
L  -^  it,  that  is  no  objection.  So  all  actions  of  a  transitory  nature  that 
arise  abroad  may  be  laid  as  happening  in  an  English  county.  But  there  are 
occasions  which  make  it  absolutely  necessary  to  state  in  the  declaration,  that 
the  cause  of  action  real!)'  happened  abroad  ;  as  in  the  case  of  specialties, 
where  the  date  must  be  set  forth.  If  the  declaration  states  a  specialty 
to  have  been  made  at  Westminster  in  Middlesex,  and,  upon  producing  the 
deed,  it  bears  date  at  Bengal,  the  action  is  gone  ;  because  it  is  such  a  vari- 
ance between  the  deed  and  the  declaration,  as  makes  it  appear  to  be  a  tiif- 
ferent  instrument.  There  is  some  confusion  in  the  books  upon  the  stat.  6 
Ric.  2.  But  I  do  not  put  the  objection  upon  that  statute.  I  rest  it  singly 
upon  this  ground.  If  the  true  date  or  description  of  the  bond  is  not  stated, 
it  is  at  variance.  But  the  law  has  in  that  case  invented  a  fiction  ;  and  has 
said,  the  party  shall  firstset  out  the  description  truly,  and  then  give  a  venue 
only  for  form,  and  for  the  sake  of  trial,  by  a  videlicet,  in  the  county  of  Mid- 
dlesex, or  anj^  other  county.  But  no  judge  ever  thought  that  when  the 
declaration  said  in  Fort  St.  George,  viz.,  in  Cheapside,  that  the  plaintiff' 
meant  it  Avas  in  Cheapside.  It  is  a  fiction  of  form;  every  country  has  its 
forms,  which  are  invented  for  the  furtherance  of  justice  ;  and  it  is  a  certain 
rule,  that^  fiction  of  law  shall  never  be  contradicted  so  as  to  defeat  the  end 
for  which  it  was  invented,  but  for  every  other  purpose  it  maybe  contra- 
dicted. Now  the  fiction  invented  in  these  cases  is  barely  for  the  mode  of 
trial ;  to  every  other  purpose,  therefore,  it  shall  be  contradicted,  but  not  for 
the  purpose  of  saying  the  cause  shall  not  be  tried.  So  in  the  case  that  was 
long  agitated  and  finally  determined  some  years  ago,  upon  a  fiction  of  the 
teste  of  writs  taken  out  in  the  vacation,  which  bear  date  as  of  the  last  day 
of  the  term,  it  was  held,  that  the  fiction  shall  not  be  contradicted  so  as  to 
invalidate  the  writ,  by  averring  that  it  issued  on  a  day  in  the  vacation  ; 
because  the  fiction  was  invented  for  the  furtherance  of  justice,  and  to  make 
the  writ  appear  right  in  form.  But  where  -the  true  time  of  suing  out  a 
latitat  is  material,  as  on  a  plea  of  non  assumpsit  infra  sex  annos,  there  it 
may  be  shown  that  the  latitat  was  sued  out  after  the  six  years,  notwith- 
standing the  teste.  I  am  sorry  to  observe,  that  some  sayings  have  been 
alluded  to,  inaccurately  taken  down,  and  improperly  printed,  where  the 


MOSTYN    V.     FABRIGASt  58f 

court  has  been  made  to  say,  that  as  men  they  have  one  *way  of  r^op,-.-, 
thinking,  and  as  judges  they  have  another,  which  is  an  absurdity  ;  l  J 
whereas  in  fact  they  only  meant  to  support  the  fiction.  I  will  mention  a 
case  or  two  to  show  that  that  is  the  meaning  of  it. 

In  6  Mod.  228,  the  case  of  Roberts  v.  Harnage  is  thus  stated  :  The*plain- 
tiff  declared  that  the  defendant  became  bound  to  him  at  Fort  St.  David's  in 
the  East  Indies  at  London,  in  such  a  bond  ;  upon  demurrer  the  objection 
was,  that  the  bond  appeared  to  have  been  sealed  and  delivered  at  Fort  St. 
David's  in  the  East  Indies,  and  therefore  the  date  made  it  local,  and,  by 
consequence,  the  declaration  ought  to  have  been  of  a  bond  made  at  Fort  St. 
David's,  in  the  East  Indies,  viz.,  at  Islington  in  the  county  of  Middlesex  ; 
or  in  such  a  ward  or  parish  in  London,  and  of  that  opinion  was  the  whole 
court.  This  is  an  inaccurate  state  of  the  case.  But  in  2  Lord  Raymond, 
1042,  it  is  more  truly  reported,  and  stated  as  follows  :  it  appeared  by  the 
declaration  that  the  bond  was  made  at  London  in  the  ward  of  Cheap;  upon 
oyer,  the  bond  was  set  out,  and  it  appeared  upon  the  face  of  it  to  be  dated 
at  Fort  St.  George  in  the  East  Indies  ;  the  defendant  pleaded  the  variance 
in  abatement,  and  the  plaintiff" demurred,  and  it  was  held  bad  ;.  but  the  court 
said  that  it  would  have  been  good,  if  laid  at  Fort  St.  George,  in  the  East 
Indies,  to  wit,  at  London,  in  the  ward  of  Cheap.  The  objection  there  was, 
that  they  had  laid  it  falsely ;  for  they  had  laid  the  bond  as  made  at  London  ; 
whereas,  when  the  bond  was  produced,  it  appeared  to  be  made  at  another 
place,  which  was  a  variance.  A  case  was  quoted  from  Latch,  and  a  case 
from  Lutwyche,  on  the  former  argument ;  but  I  will  mention  a  case  poste- 
rior in  point  of  time,  where  both  those  cases  were  cited,  and  no  regard  at 
all  paid  to  them;  and  that  is  the  case  of  Parker  v.  Crook,  10  Mod.  255. 
It  was  an  action  of  covenant  upon  a  deed  indented  ;  it  was  objected  to  the 
declaration,  that  the  defendant  is  said  in  the  declaration  to  continue  at  Fort 
St.  George,  in  the  East  Indies  ;  and  upon  the  oyer  of  the  deed  it  bore  date 
at  Fort  St.  George,  and  therefore  the  court,  as  was  pretended,  had  no  juris- 
diction :  Latch,  fol.  4.  Lutwyche,  950.  Lord  Chief  Justice  Parker  said, 
that  an  action  will  lie  in  England  upon  a  deed  dated  in  foreign  parts  ;  or 
else  the  party  can  have  no  remedy  ;  but  then  in  the  declaration  a  place  in 
England  must  be  alleged  pro  forma.  Generally  speaking,  the  deed,  upon 
*the  oyer  of  it,  must  be  consistent  with  the  declaration  ;  but  in  these  r-ji^qftni 
cases,  propter  necessitatem,  if  the  inconsistency  be  as  little  as  pos-  L  -I 
sible,  it  is  not  to  be  regarded ;  and  here  the  contract  being  of  a  voyage 
which  was  to  be  performed  from  Fort  St.  George  to  Great  Britain,  does 
import,  that  Fort  St.  George  is  different  from  Great  Britain  ;  and  after  tak- 
ing time  to  consider  of  it  in  Hilary  term,  the  plaintiff  had  his  judgment, 
notwithstanding  the  objection.  Therefore,  the  whole  amounts  to  this  ;  that 
where  the  action  is  substantially  such  a  one  as  the  court  can  hold  plea  of, 
as  the  mode  of  trial  is  by  jury,  and  as  the  jury  must  be  called  together 
by  process  directed  to  the  sheriff"  of  the  couTity,  matter  of  form  is  added 
to  the  fiction,  to  say  it  is  in  that  county,  and  then  the  whole  of  the  inquiry 
is,  whether  it  is  an  action  that  ought  to  be  maintained.  But  can  it  be 
doubted,  that  actions  may  be  maintained  here,  not  only  upon  contracts, 
which  follow  the  persons,  but  for  injuries  done  by  subject  to  subject ;  espe- 
cially for  injuries  where  the  whole  that  is  prayed  is  a  reparation  in  damages, 
or  satisfaction  to  be  made  by  process  against  the  person  or  his  effects,  within 


584  smith's  leading   cases. 

the  jurisdiction  of  the  court?  We  know  it  is  within  every  day's  experi- 
ence. I  was  embarrassed  a  great  while  to  find  out  whether  the  counsel  for 
the  plaintiff*  really  meant  to  make  a  question  of  it.  In  sea  batteries  the 
plaintiff" often  lays  the  injury  to  have  been  done  in  Middlesex,  and  then 
proves  it  to  be  done  a  thousand  leagues  distant  on  the  other  side  of  the 
Atlantic.  There  are  cases  of  offences  on  the  high  seas,  where  it  is  of 
necessity  to  lay  in  the  declaration,  that  it  was  done  upon  the  high  seas  ; 
as  the  taking  of  a  ship.  TJiere  is  a  case  of  that  sort  occurs  to  my 
memory  ;  the  reason  I  remember  it  is,  because  there  was  a  question  about 
the  jurisdiction.  There  likewise  was  an  action  of  that  kind  before  Lord 
Chief  Justice  Lee,  and  another  before  me,  in  which  I  quoted  that  deter- 
mination, to  show,  that  when  the  lords  commissioners  of  prizes  have  given 
judgment,  that  is  conclusive  in  the  action  ;  and  likewise  when  they  have 
given  judgment,  it  is  conclusive  as  to  the  costs,  whether  they  have  given 
costs  or  not.  It  is  necessary  in  such  actions  to  slate  in  the  declaration,  that 
the  ship  was  taken,  or  seized  on  the  high  seas,  videlicet,  in  Cheapside. 
But  it  cannot  be  seriously  contended  that  the  judge  and  jury  who  try  the 
„^.-,  causa  fancy  the  ship  is  sailing  in  *Cheapside  ;  no,  the  sense  of  it 
L  -^  is  that,  as  an  action  lies  in  England  for  the  sliip  which  was  taken 
on  the  high  seas,  Cheapside  is  named  as  a  venue  ;  which  is  saying  no 
more,  than  that  the  party  prays  the  action  may  be  tried  in  London. 
But  if  a  party  were  at  liberty  to  offer  reasons  of  fact  contrary  to  the  truth 
of  the  case,  there  would  be  no  end  of  the  embarrasment.  At  the  last  sit- 
tings there  were  two  actions  brought  by  Armenian  merchants  for  assaults 
and  trespasses  in  the  East  Indies,  and  thej'^  are  very  strong  authorities. 
Serjeant  Glynn  said,  that  the  defendant,  Mr.  Verelst,  was  A'ery  ably  assisted  ; 
so  he  was,  and  by  men  who  would  have  taken  the  objection^  if  they  had 
thought  it  maintainable,  and  the  actions  came  on  to  be  tried  after  this  case 
had  been  argued  once  ;  yet  the  counsel  did  not  think  it  could  be  supported. 
Mr.  Verelst  would  have  been  glad  to  make  the  objection  ;  he  would  not 
have  left  it  to  a  jury,  if  he  could  have  stopped  them  short,  and  said,  You 
shall  not  try  the  actions  at  all.  I  have  had  some  actions  before  me,  rather 
going  further  than  these  transitory  actions  ;  that  is,  going  to  cases  which  in 
England  would  be  local  actions  ;  I  remember  one,  I  think  it  was  an  action 
brought  against  Captain  Gambier,  who,  b}^  order  of  Admiral  Boscawen  had 
pulled  down  the  houses  of  some  sutlers  who  supplied  the  navy  and  sailors 
with  spirituous  liquors  ;  and  whether  the  act  was  right  or  wrong,  it  was  cer- 
tainly done  with  a  good  intention  on  the  part  of  the  admiral,  for  the  health 
of  the  sailors  was  affected  by  frequenting  them.  They  were  pulled  down  ; 
the  captain  was  inattentive  enough  to  bring  the  sutler  over  in  his  own 
ship,  who  would  never  have  got  to  England  otherwise  ;  and  as  soon  as  he 
came  here  he  was  advised  that  he  should  bring  an  action  against  the  cap- 
tain. He  brought  his  action,  and  one  of  the  counts  in  the  declaration  was 
for  pulling  down  the  houses.  The  objection  was  taken  to  the  count  for 
pulling  down  the  houses  ;  and  the  case  of  Skinner  and  the  East  India  Com- 
pany, was  cited  in  support  of  the  objection.  On  the  other  side  they 
produced  from  a  manuscript  note  a  case  before  Lord  Chief  Justice  Eyre, 
where  he  overruled  the  objection  ;  and  I  overruled  the  objection  upon  this 
principle,  namel}^  that  the  reparation  here  was  personal,  and  for  damages, 
and  that  otherwise  there  would  be  a  failure  of  justice  ;  for  ii  was  upon  the 


MOSTYN     V.     FABRIGAS.  585 

coast  of  Nova  Scotia,  where  there  were  no  regular  courts  of  *judi-  p*qfi9-i 
cature  ;  but  if  there  had  been,  Captain  Gambier  might  never  go  L  J 
there  again  ;  and  therefore  the  reason  of  locality  in  such  an  action  in  Eng- 
land did  not  hold.  I  quoted  a  case  of  an  injury  of  that  sort  in  the  East 
Indies,  where  even  in  a  court  of  equity  Lord  Hardwicke  had  directed  satis- 
faction to  be  made  in  damages  ;  that  case  before  Lord  Hardwicke  was 
not  much  contested,  but  this  case  before  me  was  fully  and  seriously  argued 
and  a  thousand  pounds  damages  given  against  Gambier.  I  do  not  quote 
this  for  the  authority  of  my  opinion,  because  that  opinion  is  very  likely  to 
be  erroneous,  but  I  quote  it  for  this  reason — a  thousand  pounds  damages 
and  the  costs  were  a  considerable  sum.  As  the  captain  had  acted  by  the 
orders  of  Admiral  Boscawen,  the  representatives  of  the  admiral  defended 
the  cause,  and  paid  the  damages  and  costs  recovered.  The  case  was 
favourable,  for  what  the  admiral  did  was  certainly  well  intended  ;  and  yet 
there  was  no  motion  for  a  new  trial. 

I  recollect  another  cause  that  came  on  before  me  ;  which  was  the  case 
of  Admiral  Palliser,  There  the  very  gist  of  the  action  was  local ;  it  was 
for  destroying  fishing-huts  upon  the  Labrador  coast.  After  the  treaty  of 
Paris,  the  Canadians  early  in  the  season  erected  huts  for  fishing,  and  by 
that  means  got  an  advantage,  by  beginning  earlier,  of  the  fishermen  who 
came  from  England.  It  was  a  nice  question  upon  the  right  of  the  Cana- 
dians. However,  the  admiral,  from  general  principles  of  policy,  ordered 
these  huts  to  be  destroyed.  The  cause  went  on  a  great  way.  The  defen- 
dant would  have  stopped  it  short  at  once,  if  he  could  have  made  such  an 
objection,  but  it  was  not  made.  There  are  no  local  courts  among  the 
Esquimaux  Indians  upon  that  part  of  the  Labrador  coast ;  and  therefore 
whatever  injury  had  been  done  there  by  any  of  the  king's  officers  would 
have  been  altogether  without  redress,  if  the  objection  of  locality  would  have 
held.  The  consequence  of  that  circumstance  shows,  that  where  the  rea- 
son fails,  even  in  actions  which  in  England  would  be  local  actions,  yet  it 
does  not  hold  to  places  beyond  the  seas  within  the  king's  dominions. 
Admiral  Palliser's  case  went  off  upon  a  proposal  of  a  reference,  and  ended 
by  an  award.  But  as  to  transitory  actions  there  is  not  a  colour  of  doubt, 
that  every  action  that  is  transitory  may  be  laid  in  any  county  in  England, 
though  the  matter  arises  beyond  the  seas;, and  when  it  is  absolutely 
*necessary  to  lay  the  truth  of  the  case  in  the  declaration,  there  is  r-*qeq-i 
a  fiction  of  law  to  assist  you,  and  you  shall  not  make  use  of  the  L  -^ 
truth  of  the  case  against  ihat  fiction,  but  you  may  make  use  of  it  to  every 
other  purpose.  I  am  clearly  of  opinion  not  only  against  the  objections 
made,  but  that  there  does  not  appear  a  question  upon  which  the  objections 
could  arise. 


The  three  other  judges  concurred. 


Per  Cur.  Judgment  affirmed. 


It  is  very  curious  and   instructive  to  tory,  juries  were  selected   for  the  very 

trace  the  progress  of  the   Enghsli  law,  reasons  which   would  now  argue  their 

respecting  the  locality  of  actions.     Dur-  unfitness,   videlicit,  their    personal   ac- 

ing  the  earliest  ages  of  our  judicial  his-  quaintance  with   the    parties   and   the 


586 


SMITHS    LEADING    CASES. 


merits  of  the  cause ;  and  few  rules  of 
law  were  enforced  with  greater  strict- 
ness than  those  which  required  that  the 
venue,  visne,  or  vicinetum,  in  other 
words  the  neighbourhood  whence  the 
juries  were  to  be  summoned,  should  be 
also  that  in  which  the  cause  of  action 
had  arisen ;  in  order  that  the  jury  who 
were  to  determine  it  principally  from 
their  own  private  knowledge,  and  who 
were  liable  to  be  attainted  if  they  deli- 
vered a  wrong  verdict,  might  be  persons 
likely  to  be  acquainted  with  the  nature 
of  the  transaction  which  they  were 
called  upon  to  try.  Peregrina  judicia, 
says  a  law  of  Henry  the  First,  mod  is 
omnibus  submovemus.  In  order  to  etTect 
this  end,  the  parties  litigant  were  re- 
quired to  state  in  their  pleadings  with 
the  utmost  certainty,  not  merely  the 
county,  but  the  very  venue,  i.  e.,  the 
very  district,  hundred,  or  vill,  within 
that  county,  where  tbe  facts  that  they 
alleged  had  taken  place,  in  order  that 
the  sheriff  might  be  directed  to  summon 
the  jury  from  the  proper  neighbourhood, 
in  case  issue  should  be  taken  on  any  of 
such  allegations.  It  followed,  of  course, 
that  a  new  venue  was  designated  as 
often  as  the  allegations  of  the  parties 
litigant  shifted  the  scene  of  the  transac- 
tion from  one  part  of  the  country  to  an- 
other. This  was,  however,  soon  found 
to  produce  great  inconveniences;  for  in 
mixed  transactions,  which  may  happen 
partly  in  one  place,  and  partly  in  ano- 
ther, it  was  extremely  difficult  to  ascer- 
tain the  right  venue;  and  as  the  num- 
ber of  these  transactions  increased  with 
increasing  civilization,  these  difficulties 
about  determining  the  place  of  trial  be- 
came of  constant  occurrence,  and  soon 
induced  the  courts,  in  order  to  relieve 
themselves,  to  take  a  distinction  be- 
tween transitory  matters,  such  as  a  con- 
tract, which  might  happen  any  where, 
and  local  ones,  such  as  a  trespass  to  the 
realty,  which  could  only  happen  in  one 
particular  place  ;  and  they  established 
as  a  rule,  that  in  transitory  matters  the 
plaintiff"  should  have  a  right  to  lay  the 
venue  where  he  pleased,  and  the  defen- 
dant should  be  bound  to  follow  it,  unless 
indeed  his  defence  consisted  of  some 
matter  in  its  nature  local,  and  which 
must  therefore,  ex  necessitate  rei,  be 
alleged  to  have  taken  place  where  it 
really  happened.  However,  this  dis- 
tinction was  soon  abused  by  litigious 
plaintiffs,  who,  by  laying  the  venue  in  a 
county  distant  from  the  defendant's  resi- 


dence, obliged  him  to  come  thither  with 
his  witnesses  ;  Gilb.  C.  P.  89 ;  and  this 
occasioned  a  return  to  the  ancient  strict- 
ness with  regard  to  venues  expressed  in 
tiie  above  law  of  Henry  the  First. 
Accordingly  by  st.  6  Richard  2,  cap.  2, 
it  was  enacted  that,  "  to  the  intent  that 
writs  of  debt,  and  account,  and  all  other 
such  actions  be  from  henceforth  taken 
in  their  counties,  and  directed  to  the 
sheriffs  of  the  counties  where  the  con- 
tracts of  the  same  actions  did  arise,  that 
if,  from  henceforth,  in  pleas  upon  the 
same  writs  it  shall  be  declared  that  the 
contract  thereof  was  in  another  county 
than  is  contained  in  the  original  writ, 
*that  then  the  said  writ  shall  r  ^,nnt  -i 
be  utterly  abated:"  and,  as  the    ^  J 

words  of  tliis  statute  were  found  not  quite 
sufficient  to  effect  the  object,  statute  4 
Henry  the  Fourth,  c.  18,  directed  that 
attorneys  should  be  sworn  "that  they 
would  make  no  suit  in  a  foreign  county." 

Atler  these  statutes  the  judges  adopt- 
ed various  means  of  enforcing  their  pro- 
visions. At  first  they  examined  the 
plaintiff"  on  oath,  as  to  the  truth  of  his 
venue  ;  afterwards  they  allowed  the  de- 
fendant to  traverse  it  and  try  it  in  aa 
issue,  Rastal,  Debt,  184,  b.  Fitz.  Abr., 
Briefs,  and  still  later  they  made  a  rule 
of  court,  rendering  it  highly  penal  on 
attorneys  to  transgress  the  act  of  Hen. 
4 ;  R.  M.  1654,  pi.  5,  K.  B. ;  M.  1654, 
pi.  8,  C.  P. ;  but  finding  that  the  mode 
of  traversing  the  venue  produced  great 
delay,  they  at  last  adopted  the  mode 
now  in  use  of  changing  it  on  motion, 
which  will  presently  be  described  more 
at  length. 

But  all  these  alterations  in  the  law 
applied,  it  must  be  borne  in  mind,  only 
to  transitory  matters,  for  where  a  matter 
alleged  in  pleading  was  of  a  local  des- 
cription, whether  the  allegation  happen- 
ed in  a  declaration  or  in  any  subsequent 
pleading,  the  venue  for  the  trial  of  such 
matter  could  be  no  where  but  at  the  very 
place  where  it  was  alleged  in  pleading 
to  have  happened,  and,  therefore,  as  is 
observed  in  the  text,  "  even  in  cases  the 
most  transitory,  if  the  cause  of  action 
was  laid  in  London,  and  there  was  a 
local  justification  as  at  Oxford,  the  cause 
must  have  been  tried  in  Oxford,  not  in 
London."  Ace.  Ford  v.  Brooke,  Cro. 
Eliz.  261 ;  Bowyer's  case,  Moor.  410. 
And  it  was  probably  this  strictness  of  the 
law  with  regard  to  venue,  which  ren- 
dered it  necessary  to  confine  the  defen- 
dant so  long  to  a  single  plea,  since  had 


MOSTYN     V.     FABRIGAS. 


587 


he  pleaded  several  pleas  on  which  issues 
liad  been  taken  triable  by  different 
venues,  there  could  have  been  no  single 
trial  of  the  action ;  and  accordingly  we 
find  that  it  was  not  till  after  the  effect 
of  the  statute  of  Car.  2,  on  venues,  had 
become  well  settled  that  the  very  same 
year  which  put  an  end  to  the  last  rem- 
nant of  the  old  severity,  by  abolishing 
tiie  necessity  of  summoning  hundreders, 
also  endowed  the  defendant  with  a  right 
which  he  ought  in  justice  always  to  have 
possessed,  of  stating  every  thing  in  his 
defence  which  can  by  law  be  made 
available  to  exonerate  him ;  the  right 
corresponding  to  which,  that,  namely,  of 
replying  to  the  defence  every  thing 
which  has  a  direct  tendency  to  rebut  it, 
is,  even  in  our  more  advanced  times, 
denied  the  plaintiff. 

It  may  not  be  inapposite  here  to  ob- 
serve tiiat  the  St.  34  Hen.  8,  cap.  34, 
had  in  comparatively  early  times  creat- 
ed a  remarkable  anomaly  in  the  then 
law  of  venue,  bj--  rendering  certain  ac- 
tions transitory  which  are  unquestion- 
ably in  their  nature  local.  That  act, 
the  words  of  which  are  set  out  ante,  p. 
28,  gave  assignees  of  the  reversion,  "^Ae 
like  advantages"  against  the  lessee,  and 
the  lessee  the  '■'■like  action  and  remedy" 
against  the  assignee  of  the  reversion,  as 
the  lessor  and  lessee  had  before  that  act 
respectively  possessed  against  each 
other.  Now  the  remedy  of  these  latter 
personages  against  each  other  was  by 
an  action  founded  upon  the  contract  into 
which  they  had  reciprocally  entered:  it 
was  therefore  transitory  according  to  the 
maxim  debitum  et  contractus  sunt  nul- 
lius  loci,  and  existed  independent  of  the 
relation  in  which  they  stood  to  each 
other  in  respect  of  their  several  interests 
in  the  same  land  :  whereas  the  rights  of 
the  assignee  of  the  reversion  against  the 
lessee,  and  of  the  lessee  against  the 
assignee  of  the  reversion,  issue  entirely 
out  of  that  relation,  and  depend  on  no 
mutual  contract,  so  that  their  actions 
against  each  other  would  have  been 
locals  as  those  of  the  assignee  of  the 
term  against  the  lessor  and  his  assigns, 
and  of  the  lessor  and  his  assigns  against 
the  assignee  of  the  term  still  are,  had 
not  the  statute  intervened,  and  by  the 
use  of  the  word  like  rendered  those 
actions  transitory,  which  otherwise 
would  have  been  local.  The  result 
therefore  of  the  statute  of  Hen.  8,  coupl- 
ed with  the  common  law,  is,  that  the 
following  actions,  viz.,  lessor  against 


lessee,  lessee  against  lessor,  assignee  of 
reversion  against  lessee,  lessee  against 
assignee  of  reversion,  are  transitory ; 
while  the  following,  viz.,  lessor  against 
assignee  of  lessee,  assignee  of  lessee 
against  lessor,  assignee  of  lessee  against 
assignee  of  lessor,  and  assignee  of  lessor 
against  assignee  of  lessee,  *are  r  ^jcooc  -i 
local.     See  Thursby  v.  Plant,    L   "^^^  ^ 

1  Saund.  237 ;  Stevenson  v.  Lambard, 

2  East,  575;  Barker  v.  Damer,  Carth. 
182.  Salk.  80, 

But  to  return  to  the  progress  of  the 
law  of  venue,  st.  16  and  17  Car.  2,  cap. 
8,  (one  of  the  statutes  of  Jeofails)  enact- 
ed, "that  after  judgment  no  verdict  shall 
be  arrested  or  reversed,  for  that  there  is 
no  right  venue,  so  as  the  cause  of  action 
were  tried  by  a  jury  of  the  proper 
county  or  place  where  the  action  was 
laid.'" 

Considerable  difficulty  arose  on  the 
construction  of  this  statute,  many  law- 
yers contending  that  the  words  "the 
proper  county  or  place  where  the  action 
is  laid,"  must  be  understood  to  mean  the 
proper  county  or  place  where  the  issue 
arises,  so  that  if  the  issue  arose  at  Dale 
in  Oxfordshire,  and  the  venue  was  Sale 
in  the  same  county,  here  they  said  was 
a  case  within  tiie  statute,  there  being  a 
right  county  but  a  wrong  venue.  How- 
ever it  was  at  length  decided  in  Craft  v. 
Boite,  1  Saund.  246,  b,  contrary  to  the 
opinion  of  Twysden,  Justice,  and  was 
settled  by  many  subsequent  cases,  that 
the  words  "  lohtre  the  action  was  luid,^* 
mean,  wiiere  it  was  laid  in  the  declara- 
tion, not  in  any  subsequent  pleading. 
And  accordingly  it  has  ever  since  been 
held  that  it  is  sufficient  if  the  jury  be 
su.mmoned  from  the  venue  laid  in  the 
declaration.  This  venue  indeed  was  at 
that  time  the  vill  or  hundred  where  the 
cause  of  action  was  stated  in  the  decla- 
ration to  have  arisen  :  and  anciently  the 
jury,  in  order  that  they  might  be  persons 
well  acquainted  with  the  controversy, 
were  summoned  out  of  the  very  hundred 
designated  for  the  venue.  Afterwards 
the  rule  was  relaxed,  and  in  the  reign 
of  Edward  the  Third  it  was  sufficient  if 
the  jury  contained  six  hundreders.  Gilb. 
C.  P.  c.  8.  This  number  was  in  Henry 
the  Sixth's  reign  reduced  to  four,  For- 
tescue  de  Laud.,  c.  25;  it  was  after- 
wards, by  St.  35  H.  8,  c.  6,  restored  to 
six;  St.  27  Eiiz.,  cap.  6,  reduced  it  to 
tico ;  and  so  the  law  remained  till  long 
after  the  st.  16  and  17  Car.  2,  cap.  8,  after 
which  act  it  was  still  necessary  that  two 


588 


smith's  leading  cases. 


at  least  of  the  jurors  should  be  summon- 
ed from  the  hundred  laid  in  tlie  declara- 
tion ;  and  if  there  were  not  so  many,  it 
was  cause  of  challenge.  But  this  last 
remnant  of  the  ancient  strictness  was 
abolished  by  4  &  5  Ann,,  c.  6,  except  so 
far  as  concerned  actions  founded  upon 
penal  statutes,  to  which  the  abolition 
was  extended  by  24  G.  2,  c.  18.  So 
that  now  it  is  in  all  cases  sufficient  if  the 
jury  he  summoned  de  corpore  comitatus, 
i.  e.  from  the  body  of  the  county  in 
which  the  venue  is  laid  by  the  declara- 
tion. 

It  will,  however,  be  remembered  that 
the  statute  of  Charles  the  Second  did 
not  enact  positively  that  the  venue  in 
the  declaration  should  be  adopted,  but 
only  prevented  the  judgment  from  being 
arrested  or  reversed  in  consequence  of 
its  adoption.  So  that,  even  now,  if  a 
local  justification  were  to  be  stated  in 
the  plea,  there  seems  no  reason  why  the 
plaintiff  should  not,  if  he  pleased,  sue  out 
the  jury  process,  and  carry  the  cause 
down  to  trial  to  the  county  mentioned 
in  the  plea,  as  at  common  law,  before 
the  statute  of  Car.  2,  he  ?nnst  have  done. 
Nor  does  there  seem  any  reason  to  pre- 
vent the  defendant  from  doing  so,  when 
he  has  a  right  to  try  the  cause  by  pro- 
viso; so  that  a  curious  question  might 
arise,  if  the  plaintiff  were  to  carry  the 
cause  down  for  trial  to  the  county  named 
in  the  declaration,  and  the  defendant  to 
that  laid  in  his  local  justification. 

It  has  been  already  mentioned  that  in 
transitory  actions  tlie  judges  adopted 
various  modes  of  enforcing  the  policy  of 
the  statute  of  Richard  the  Second,  and 
obliging  the  plaintiff  to  lay  his  venue 
where  the  transaction  in  dispute  had 
really  occurred.  At  last,  they  had  re- 
course to  a  practice,  which  seems  to 
have  been  first  introduced  in  the  reign 
of  James  the  First.  (Per  Holt,  C.  J.,  2 
Sal.  670;  the  first  case  in  the  books  is 
Lord  Gerrard  v.  Floyd,  1  Sid.  185,  E.  16, 
Car.  2,)  founded  upon  the  equity  of  that 
enactment,  by  which  they  held  them- 
selves authorized,  upon  affidavit  made 
that  the  cause  of  action,  if  any,  arose  in 
the  county  of  A.,  and  not  in  the  county 
of  B.,  in  which  the  venue  was  laid,  or 
elsewhere  out  of  the  county  of  A.,  to 
change  the  venue  to  the  county  of  A., 
and  the  motion  for  so  doing  is  of  course, 
only  requiring  counsel's  signature.  R. 
H.  2  W.  pi.  103.  But  as  it  would  be 
hard  to  conclude  tlie  plaintiff  on  the 
single  aflidavit  of  the  defendant,  it  is 


further  held,  that  the  venue  may  be 
brought  back,  if  the  ^plaintiff  r  ^qcc  -i 
un-dertake  to  give  material  evi-    L  -I 

dence  in  the  county  in  which  the  action 
is  brought,  failing  which  he  must  be  non- 
suited, wliich  is  equivalent  to  an  abate- 
ment of  tlie  writ,  according  to  the  sta- 
tute. Gilb.  C.  P.  90.  Santler  v.  Heard, 
2  Bl.  1032,  1033  ;  Bruckshaw  v.  Hop- 
kins, Cowp.  410;  Watkins  v.  Towers,  2 
T.  R.  275.  See  Curtis  v.  Drinkwater, 
2  B.  &,  Ad.  109;  Collins  v.  Jenkins,  4 
Bing.  N.  C,  225.  But  there  are  many 
cases  of  transitory  actions,  in  which  the 
defendant  cannot  by  possibility  make  the 
above  affidavit,  in  order  to  procure  a 
change  of  venue.  He  cannot,  for  in- 
stance, do  so  where  the  cause  of  action 
has  arisen  partly  in  one  county  and 
partly  in  another.  Pinckney  v.  Collins, 
1  T.  R.  571  ;  Clissold  v.  Clissold,  1  T. 
R.  647.  So  too,  if  the  action  be  upon  a 
specialty,  because  the  cause  of  action 
follows  the  instrument,  which  falls  under 
the  class  of  bona  notabilia,  wherever  it 
happens  to  be.  Foster  v.  Taylor,  1  T. 
R.  781  ;  Watt  v.  Daniel,  1  B.  &  P.  425; 
or  where  a  promissory  note,  or  bill  of 
exchange.  Smith  v.  Elkins,  1  Dow. 426; 
Dawson  v.  Bowman,  3  Dowl.  161  ; 
charter-party,  Morrice  v.  Hurry,  7 
Taunt.  306  ;  or  award,  Stanway  v.  His- 
lop,  3  B.  &  C.  9,  is  specially  declared 
on,  the  reason  for  which  is  said  to  be, 
that  the  written  instrument  declared  on 
is  the  cause  of  action  ;  and  that  as  con- 
tractus est  nuUius  loci,  the  cause  of 
action  cannot  be  said  to  arise  more  in 
one  county  than  another ;  but  this  prin- 
ciple, which,  if  universally  true,  would 
prevent  the  venue  from  being  changed 
on  the  common  rule  in  any  case  where 
the  declaration  is  special  on  a  written 
instrument,  (see  Morrice  v.  Hurry,  7 
Taunt.  306,)  has,  however,  been  in  some 
instances  departed  from.  See  Roberts 
V.  Wright,  1  Tyrwh.  532;  Watkins  v. 
Towers,  2  T.  R.  275;  Kirk  v.  Broad, 
Sayer,  7  ;  Howarth  v.  Willett,  2  Str. 
1180  ;  and  wherever  the  written  con- 
tract is  not  the  caicse  of  action  declared 
on,  it-  appears  to  be  no  objection  to 
changing  the  venue,  that  probably  a 
written  instrument  will  be  given  in  eci- 
dence  to  support  the  declaration.  See 
Picard  v.  Featherstone,  4  Bing.  39.  And 
even  in  the  other  cases  above  mentioned, 
in  which  the  court  refuses  to  change  the 
venue  upon  the  common  affidavit,  it  will 
do  so  upon  a  special  one,  showing  that 
the  alteration  is  for  the  interests  of  jus- 


MOSTYN      V.     FABRIGAS. 


589 


tice  ;  as,  for  instance,  where  all  the  wit- 
nesses are  resident  in  the  county  into 
which   it    is  proposed    to    change    the 
venue  ;    or  an  impartial  trial  cannot  be 
had  in  the  county  in  which  it  is  origi- 
nally laid.    See  Tidd's  Prac.  60o.    And 
there    is    this   difference    between   the 
common     and    special    application     to 
change  the  venue,  viz.,  that  the  former 
cannot  be  made  in  any  of  the  courts  after 
plea  pleaded;  see  Tidd,  608  ;  nor  in  the 
Exchequer  after   an  order  for  time  to 
plead  "  on  the  usual  terms:''     Notts  v. 
Curtis,  2  Tyrwh.  307.     Whereas,  if  the 
application  be   on    special   grounds,    it 
must  not  be  made  till  issue  joined  ;  or, 
at   least,  not  till   after  a  plea   clearly 
showino-  what  will  be  the  nature  of  the 
issue,   has   been   pleaded.      Dowler   v. 
CoUis,  4  M.  &  Welsh.  531 ;  since  the 
court  cannot  till  then  know  what  is  the 
question    intended  to    bo  tried,  and,  of 
course,  can  form  no  opinion  on  the  pro- 
priety of  changing   the    place  of  trial. 
Tidd,  614.  Rohrs  v.  Sessions,  4  Tyrwh. 
275;  Cotteril  v.  Dixon,  3  Tyrwh.  70l»; 
Youde  v.  Youde,  4  Dowl.  32. 

The  above  rules,  however,  are  only 
to  be  taken  to  refer  to  transitory  actions  ; 
for  where  the  venue  was  local  the  courts 
did  not  consider  themselves  empowered 
to  change  it,  unless  by  consent  of  both 
parties,  or  on  a  suggestion  that  a  fair 
and  impartial  trial  could  not  be  had  in 
the  county  where  the  venue  was  laid. 
See  Tidd,  605.     But  now,  by  3  &  4  W. 
4,  c.  42,  sec.  23,  reciting  "  that  unne- 
cessary delay  and  expense  is  sometimes 
occasioned  by  the  trial  of  local  actions 
in  the  county  where  the  cause  of  action 
has  arisen,"  it  is  enacted,  "  that  in  any 
action  depending  in  any  of  the  said  supe- 
rior courts,  the  venue  of  which  is,  by 
law,  local,  the  court  in  which  such  action 
shall  be  depending,  or  a  judge  of  any  of 
the  said  courts,  may,  on  the  application 
of  either  party,  order  the  issue  to  be 
tried,  or  a  writ  of  inquiry  to  be  execut- 
ed, in  any  other  county  or  place  than 
that  in  which  the  venue  is  laid;  and 
for  that  purpose  any  such  court  or  judge 
may  order  a  suggestion  to  be  entered 
upon  the  record,  that  the  trial  may  be 
more  conveniently  had  or  a  writ  of  in- 
quiry executed  in  the  county  or  place 
where  the  same  is  ordered  to  take  place." 
The  application  under  this  section  must 
be   made   after   issue  joined.      Bell  v. 
Harrison,  4  Dowl.  181. 
r  *'^a7 1       *With  respect  to  transitory 
L    ""'  -I   causes  of  actions  which  have 


accrued  abroad,  like  thfit  in  the  princi- 
pal case  of  Fabrigas  v.  Mostyn,  it  must 
be  remarked  that  although  the  courts  of 
this  country  will  entertain  them,  still 
they  will,  in  adjudicating  on  them,  be 
governed  by  the  laws  of  the  country  in 
which  they  arose.     This  distinction  laid 
down  in  all  cases  of  this  description  is 
between  the  cause  of  action,  which  is  to 
be  judged  of  with  reference  to  the  law 
of  the  country  where  it  originated,  and 
the  mode  of  procedure,  which  ntiust  be 
adopted   as  it  happens  to   exist  in   the 
country  where   the   action   is   brought. 
Thus,   in  Trimbey  v.  Vignier,  1   Bing. 
N.  C.  151,  it  was  held  that  as,  by  the 
law  of  France,  an  indorsement  in  blank 
does  not  transfer  any  property  in  a  bill 
of  exchange,  the  holder  of  a  bill  drawn 
n  France,  and  there  indorsed  in  blank, 
cannot  recover  upon  it  in  this  country 
against  the  acceptor.     "  The  rule,"  said 
Tindal,    C.    J.,    delivering    judgment, 
"  which  applies  to  the  case  of  contracts 
made  in  one  country,  and  put  in  suit  in 
the  courts  of  law  of  another  country,  ap- 
pears to  be  this,  that  the  interpretation 
of  the  contract  must  be  governed  by  the 
law  of  the  country  where  the  contract 
was  made  :  the  mode  of  suing,  and  the 
time    within  which  the  action  must  be 
brought,  must  be  governed  by  the  law 
of   the   country    vv^iere    the    action     is 
brought."     This   distinction  was  acted 
on  in  The  British  Linen  Company  v. 
Drummond,  10  B.  &l  C.  903,  where  it 
was  held  that   the   English   Statute  of 
Limitations  was  a  good  plea  to  an  action 
in  a  Scotch  contract,  which  might  in 
Scotland  have  been  put  in  suit  at  any 
time  within  forty  years;  in  De  la  Vega 
V.  Vianna,  1  B.  &  Ad.  284,  where  the 
defendant  was  allowed  to  be  arrested  for 
a  debt  contracted  in  Portugal,  and  for 
which  he  could  not  have   been  arrested 
there ;  in  Alivon  and  another,  provisional 
syndics   of  the    estate   of  Beauvain,  a 
bankrupt   v.    Furnival,   4  Tyrwh.  751, 
where  the  Court  of  Exchequer  acted  on 
the  French  law  of  bankruptcy  ;  and  in 
that  of  Huber  v.  Steiner,  2  Bing.  N.  C. 
202,  in  which  the  whole  difficulty  was 
in   ascertaining    whether    the   rule    of 
foreign  law  applied  ad  valorem  contrac- 
tus or  ad  modum  actionis  instituendaj. 
It  was  an  action  on  a  promissory  note ; 
and   the    question   was     whether    the 
French   law   of  prescription   formed   a 
defence  thereto,  the  action  being  brought 
within  the  English  period  of  limitation. 
In  behalf  of  the  defendant  it  was  con- 


590 


SMITH    S     LEADING     CASES. 


tended  that  laws  for  the  limitation  of 
suits  were  of  two  kinds,  those  which  bar 
the  remedy,  and  those  wliich  extinguish 
the  debt;  and  the  following'  passage 
was  cited  from  Story's  Commentaries 
on  the  Conflict  of  Laws,  p.  487 : — 
"  Where  the  Statutes  of  Limitation  of  a 
particular  country  not  only  extinguish 
tlie  right  of  action,  but  the  claim  or  title 
itself  ipso  facto,  and  declare  it  a  nullity 
after  the  lapse  of  the  prescribed  period, 
in  such  a  case  the  statute  may  be  set  up, 
in  any  other  country  to  which  the  par- 
ties remove,  by  way  of  extinguishment." 
"  This  distinction,"  said  Tindal,  C.  J., 
delivering  judgment,  "  when  taken  with 
the  qualihcation  annexed  to  it  by  the 
author  himself,  appears  to  be  well 
founded."  That  qualification  is,  "that 
the  parties  are  resident  within  the  juris- 
diction during  all  that  period,  so  that  it 
has  actually  operated  upon  the  case  ;" 
and,  with  such  restriction,  it  does  indeed 
appear  but  reasonable  that  the  part  of 
the  lex  loci  contractus,  which  declares 
the  contract  to  be  absolutely  void  at  a 
certain  limited  time,  without  any  inter- 
vening suit,  should  be  equally  regarded 
jn  the  foreign  country,  as  the  part  of  the 
lex  loci  contractus,  which  gives  life  to 
and  regulates  the  construction  of  the 
contract;  both  parts  go  equally  ad  valo- 
rem contractus,  both  ad  decisionera 
litis."  However,  the  court,  upon  exa- 
mination of  the  French  law  of  prescrip- 
tion, thought  that  its  effect  was  not  to 
extinguish  the  right,  but,  as  in  England, 
only  to  bar  the  remedy,  and  therefore 
that  the  defence  was  in  that  case  un- 
available. 

Supposing  the  law  of  a  foreign  coun- 
try to  be,  that  a  contract  is,  after  a  certain 
time  to  be  deemed  absolutely  extinguish- 
ed, it  seems  not  quite  reasonable  to  say 
that  the  removal  of  the  parties  out  of  the 
jurisdiction,  while  that  time  is  running, 
should  authorise  the  courts  of  this  coun- 
try to  consider  it  in  esse  after  the  period 
prefixed.    The  authorities  establish  that 


the  law  of  the  country  whore  the  con- 
tract is  made  must  govern  it,  and  must 
be  looked  on  as  impliedly  incorixjrated 
with  it.  Now,  if  *the  contract  had  r:(cof>q-i 
contained  a  proviso  that  it  should  '-  ■' 
be  absolutelyvoid,  if  not  enforced  within 
a  certain  time,  no  doubt  the  English 
courts  would  hold  it  void  after  the  ex- 
piration of  that  time.  But  what  differ- 
ence can  it  make  that  such  proviso  is 
implied  from  the  law  of  the  country 
where  the  contract  was  made  instead  of 
being  expressed  in  terms  ?  Is  it  not  in 
both  cases  equally  part  of  the  contract  ! 
It',  indeed,  the  rule  of  the  foreign  law  be, 
that  the  contract  shall,  after  the  lapse 
of  a  certain  time,  become  void,  provided 
that  the  parties  to  it  continue  to  reside 
all  that  time  in  the  same  country,  the 
arrival  of  the  period  prefixed  for  its 
avoidance  will  depend  on  the  contin- 
gency of  their  abstaining  from  absenting 
themselves  ;  and,  if  they  leave  the  coun- 
try, never  will  arrive  at  all;  and  this 
is,  perliaps,  what  Judge  Story  intends 
by  the  words  "  that  the  parties  are  resi- 
dent within  the  jurisdiction  during  all 
that  period,  so  that  it  has  actually  ope- 
rated  upon  the  case."  For  if  the  law 
be  so  framed  as  to  operate  npon  the  case 
without  such  residence,  the  qualification 
appears  to  be  inapplicable. 

In  Brown  v.  Thornton,  6  A.  &  E.  185, 
a  charter-party  was  entered  into  at 
Batavia.  According  to  the  law  prevail- 
ing there,  such  intruments  are  entered 
in  a  public  book,  which  is  the  only  evi- 
dence of  their  contents  in  that  colony; 
a  public  notary  makes  two  copies  from 
the  book,  and  delivers  one  to  each  party, 
and  these  are  evidence  of  the  original  in 
all  the  Dutch  courts  except  Batavia. 
Held  that  such  copies  are  not  evidence 
of  the  original  in  this  country.  The 
courts  here  will  not  adopt  rules  of  evi- 
dence from  foreign  courts.  Appleton  v. 
Lord  Braybrooke,  2  Stark.  6,  6  M.  &  S. 
34.  Black  v.  Lord  Braybrooke,  2  Stark. 
7,  6  M.  &  S.  39. 


Independently  of  some  legal  fiction,  the  jurisdiction  of  a  common  law 
court,  could  never  extend  to  a  cause  of  action,  accruing  beyond  the  limits 
assigned  to  the  running  of  its  writs.  This  will  be  sufficiently  evident, 
when  we  reflect  that  while  the  common  law  requires,  that  the  truth  of  every 


MOSTYN     V.     FABRIGAS.  591 

material  fact  traversed,  should  be  tried  by  a  jury  of  the  place  where  it  is 
alleged  to  have  happened,  the  rules  of  pleading  equally  demand,  that  such 
allegation  of  place,  should  accompany  every  material  averment.  In  order 
to  obviate  this  difficulty,  the  English  courts  permitted  the  plaintiff,  in  certain 
actions  which  were  regarded  as  transitory  in  their  character,  to  allege  a 
fictitious  place,  as  the  one  where  the  cause  of  action  accrued,  and  obliged 
the  defendant,  unless  when  justice  might  be  promoted  through  a  change,  to 
follow  the  place  thus  assigned,  through  all  succeeding  averments  of  a  simi- 
lar nature.  In  this  way,  the  courts  obtained  the  power  of  considering  tran- 
sitory actions,  even  where  their  cause  happened  beyond  the  limits  of  the  king- 
dom. But  when  the  action  was  local  in  its  nature,  it  still  remained  necessary 
to  aver  all  material  facts  as  happening  where  they  actually  occurred  ;  and 
of  course  no  venire  could  be  issued  for  the  purpose  of  trial,  when  the  venue 
laid,  was  beyond  the  reach  of  the  judicial  writs  of  the  court.  In  this  man- 
ner, all  transitory  actions,  where  other  reasons  did  not  interfere,  came  within 
the  jurisdiction  of  the  common  law  courts,  wherever  the  cause  which  gave 
them  birth  might  have  happened  ;  while  no  possible  cognizance  could  be 
taken  of  local  actions,  save  where  the  court  could  summon  a  jury  of  the 
county,  to  try  any  issue  which  they  might  produce. 

This  distinction  between  local  and  transitory  actions,  is  generally  recog- 
nised in  the  United  States,  although  from  peculiar  statutory  enactments, 
there  may  be  some  difference  in  the  diffisrent  states,  as  to  the  cases  where  it 
is  applicable.  Thus,  in  an  early  case  in  Pennsylvania,  an  action  for  the 
use  and  occupation  of  lands  in  New  Jersey,  was  supported  by  the  Supreme 
Court  of  that  state,  upon  the  principles  stated  above.  As  the  cause  of  action 
grew  out  of  an  implied  contract  to  pay  money,  it  was  held  to  be  transitory, 
although  the  subject-matter  of  the  contract  related  to  the  realty.  Henwood 
V.  Cheeseman,  3  Sergeant  and  Rawle,  501  ;  Wills  v.  Church,  5  id.  193. 
It  may  be  observed  that  the  grounds  of  this  decision,  would  equally  support 
an  action  for  the  rent  of  land,  in  an  entirely  foreign  country,  since  in  the 
present  instance,  the  land  was  as  completely  out  of  the  jurisdiction  of  the 
courts  of  Pennsylvania,  and  as  completely  within  the  jurisdiction  of  other 
tribunals,  as  could  be  the  case  in  any  instance  whatever. 

It  was  at  the  same  time  admitted  in  Henwood  v.  Cheeseman,  that  even 
where  the  cause  of  action  is  in  itself  capable  of  being  brought  within  the 
jurisdiction  of  the  court,  the  plaintiff  cannot  recover  where,  by  the  form  of 
his  remedy,  he  makes  it  essential  that  the  material  facts  of  the  case,  be  laid 
where  they  have  really  happened,  and  those  facts  have  occurred  beyond 
the  reach  of  a  venire  facias  ;  thus  rendering  it  impossible  to  summon  a  jury 
from  the  proper  venue.  Thus  debt  on  the  reddendum,  when  not  between 
the  original  parties  to  a  lease,  was  held  to  be  always  local  in  its  character, 
and  of  course,  incapable  of  affording  a  remedy  to  a  party  suing,  without 
the  limits  of  the  jurisdiction  in  which  the  land  is  situated.  The  same 
undoubted  law  was  recognised  as  equally  true,  in  the  case  of  actions  brought 
on  covenants,  where  the  covenant,  whether  as  a  right  or  liability,  has  been 
transferred  to  the  plaintiff  or  defendant,  as  incident  to  the  assignment  of  an 
estate  in  land,  although  it  was  of  course  admitted,  that  where  passed  with  a 
reversion  by  force  of  the  statute  of  32  Henry,  8,  any  action  upon  it  con- 
tinued to  be  transitory.  It  therefore  appears,  that  had  the  plaintiff  in  this 
case  purchased  the  land,  after  a  lease  made  to  the  defendant,  and  then 


592  smith's  leading   cases. 

brought  debt  for  the  rent,  he  would  have  been  defeated,  aUhough  on  having 
recourse  to  assumpsit  for  the  same  cause  of  action,  he  must  have  been  suc- 
cessful, unless  the  demise  were  by  deed,  when  another  valid  remedy,  by  an 
action  on  the  covenants,  would  have  arisen  under  the  statute  as  to  assignees 
of  reversions. 

It  has  been  held  in  New  York,  that  if  there  be  a  mistake  committed  in 
laying  the  venue,  the  defendant  may  take  advantage  of  it  by  demurrer, 
where  it  appears  on  the  face  of  the  record,  and  where  it  does  not,  by  way  of 
nonsuit  at  trial.  Bracket  v.  Alvard,  5  Cowen,  18.  Rightmyer  v.  Raybold, 
12  Wendell,  51.  In  like  manner  it  was  determined  in  a  suit  brought  for 
slander,  that  as  personal  actions,  whether  of  tort  or  contract,  are  in  general 
transitory,  evidence  might  be  given  of  a  speaking  in  Canada  under  a  venue 
laid  in  New  York;  and  this  without  the  customary  averment  of  the  actual 
place  of  the  occurrence  explained  by  a  scilicet  to  be  within  the  limits  from 
whence  the  jury  are  to  be  summoned.  Lister  v.  Wright,  2  Hill,  320.  And 
in  the  recent  case  of  Chapman  v.  Wilbur,  6  Hill,  475,  it  was  decided  that 
where,  under  the  provisions  of  the  revised  statutes,  the  cause  of  action  was 
local  and  the  venue  was  laid  at  Batavia,  to  wit,  in  the  city  and  county  of 
New  York,  the  court  would  presume  that  Batavia,  in  the  county  of  Gen- 
nessee,  and  not  Batavia  in  the  East  Indies,  was  intended,  and  give  judg- 
ment for  the  defendant  on  demurrer.  Where  the  action  is  local,  and  the 
venue  rightly  laid  by  the  plaintiff",  the  court  will  not  change  it  to  meet  the 
convenience  of  the  defendant ;  and  although  the  form  of  the  action  be  in 
replevin,  which  may  be  brought  for  injuries  to  personal  property,  uncon- 
nected with  the  realty,  it  may  be  doubted  whether  the  venue  must  not  of 
necessity  be  local;  but  at  all  events,  it  will  be  presumed  so,  unless  there 
be  an  affidavit  showing  that  it  is  of  an  opposite  character.  Robinson  v. 
Mead,  7  Mass.  353.  Atkinson  v.  Holcomb,  4  Cowen,  46.  Williams  v. 
Welch,  5  Wend.  290. 

Ill  general,  all  actions  of  a  local  character,  are  excluded  from  the  juris- 
diction of  the  courts  of  common  law,  when  their  cause  has  accrued  beyond 
the  territorial  limits  to  which  that  jurisdiction  extends,  while  transitory 
actions  are  brought  by  a  fiction  of  law  within  the  reach  of  those  courts. 
Yet  from  the  language  of  Lord  Mansfield,  it  will  be  seen,  that  to  prevent 
a  failure  of  justice,  certain  local  actions  have  been  considered  in  the  English 
courts,  though  happening  out  of  England.  Supra,  583.  In  both  these 
cases,  the  injuries  to  real  property  were  committed,  not  merely  within  the 
dominions  of  the  British  crown,  but  in  a  country  where  no  regular  courts  of 
judicature  had  been  established.  It  is  not  therefore,  surprising,  that  the 
defendant  should  not  have  been  permitted  to  take  advantage  of  the  charac- 
ter of  the  action,  and  thus  deprive  the  plaintiff"  of  all  remedy  whatever.  It 
must  be  perfectly  evident,  that  these  decisions  never  formed  any  precedent 
for  disregarding  the  distinction  between  local  and  transitory  actions,  where 
the  wrong  has  been  committed  either  within  the  dominions  of  another  power, 
or  within  the  jurisdiction  of  any  regular  court.  In  the  subsequent  decision 
of  Doulson  V.  Matthews,  4  Term,  503,  which  is  now  the  leading  case  on 
this  point,  it  was  determined  that  an  action  could  not  be  supported  in  Eng- 
land for  a  trespass  committed  in  Canada,  by  entering  on  the  plaintiff"  and 
expelling  him  from  the  possession  of  his  dwelling-house.  Although  there 
may  have  been  in  this,  as  in  some  other  instances,  a  disposition  on  the  part 


MOSTYN     V.     FABRIGAS.  593 

of  Lord  Kenyon  to  overrule  Lord  Mansfield,  yet  there  was  no  allegation, 
whether  of  record  or  otherwise,  of  the  absence  of  all  courts  of  justice  in  the 
place  where  the  injury  was  committed,  and  therefore  the  case  did  not  come 
within  the  reason  of  the  exception  to  the  general  rule,  suggested  in  Mostyn 
V.  Fabrigas.  The  decision  in  Doulson  v.  Matthews  was,  however,  authori- 
tatively sustained  by  Marshall,  C.  J.,  in  the  case  of  Livingston  v.  Jeffer- 
son, 1  Brockenb,  R.  203,  on  a  similar  state  of  facts.  It  was  there  held  that 
an  action  would  not  lie  in  Virginia  for  an  injury  to  the  realty  committed 
at  New  Orleans,  and  that  the  probability  or  improbability  of  the  return  of 
the  plaintiff  within  the  reach  of  the  courts  entitled  to  take  cognisance  of  the 
cause  of  suit,  could  not  be  taken  into  consideration  as  affecting  the  judg- 
ment. These  decisions  have  been  followed  and  confirmed  in  New  York  by 
the  Supreme  Court  and  by  the  Court  of  Errors,  in  the  recent  case  of  Watts 
V.  Kinney,  23  Wend.  484,  6  Hill,  82. 

While  transitory  actions,  though  founded  on  contracts  made  without  their 
jurisdiction,  may  be  brought  within  the  cognizance  of  common  law  tribunals, 
even  where  the  parties  are  aliens,  Barrill  v.  Benjamen,  15  Mass.  355,  or 
where  the  subject-matter  of  the  contract  relates  to  the  realty  ;  Henwood  v. 
Cheeseman  ;  yet  th,ere  is  more  reason  for  doubt  where  actions  of  this  sort, 
although  as  transitory  in  their  character,  arise  out  of  torts  committed  beyond 
such  jurisdiction.  The  objection  in  this  case  applies  to  the  cause,  not  the 
form  of  action.  VV^iihout  touching  upon  the  case  where  a  tort,  transitory  in 
its  nature,  has  been  committed  within  the  boundaries  of  the  exclusive  juris- 
diction of  another  nation,  or  inquiring  whether  the  doctrine  that  a  venue  not 
local,  may  be  laid  any  where  at  the  option  of  the  plaintiff,  can  extend  to 
taking  it  out  of  the  limits  of  a  foreign  country,  the  decisions  made  by  the 
superior  tribunals  of  New  York  determine,  that  even  where  the  cause  of 
action  is  purely  in  tort,  it  will  be  embraced  within  the  jurisdiction  of  a  com- 
mon law  court,  although  occurring  upon  the  high  seas,  and  on  board  the 
vessels  of  a  foreign  nation.  Gardner  v.  Thomas,  14  Johns.  136.  Hallet  v. 
Novion,  14  Johns.  273  ;  S.  C.  16  Johns.  327.  Percival  v.  Hickey,  18  Johns» 
257.  Johnson  v.  Dalton,  5  Cowen,  543.  In  Percival  v.  Hickey,  an  action  for 
negligently  running  down  the  ship  of  the  plaintiff,  was  sustained  against 
the  defendant,  although  the  injury  was  committed  by  him,  while  commander 
of  the  British  sloop  of  war  Atlanta,  in  attempting  to  exercise  the  undoubted 
belligerent  right  of  search. 

But  although  these  cases  determine,  that  the  fiction  of  law  by  which  the 
cause  of  action  is  brought  within  the  jurisdiction  of  the  court,  while  in  reality 
occurring  beyond  it,  extends  to  the  case  of  torts  on  the  high  seas,  as  well  as 
to  contracts,  and  that  the  averment  contra  pacem,  in  a  declaration,  for  an 
assault  and  battery,  is  immaterial  and  need  not  be  proved,  yet  in  Gardner  v. 
Thomas,  it  was  held  to  be  at  the  discretion  of  the  court,  whether  they  would 
take  cognizance  of  such  actions,  when  occurring  at  sea  on  board  the  vessels 
of  foreign  powers.  In  that  case,  as  the  parties  were  seamen,  on  board  a 
British  vessel  lying  in  port,  and  bound  by  a  contract  still  in  force,  to  return 
in  her  to  their  own  country,  the  court  refused  to  consider  the  action  as 
Avithin  their  own  jurisdiction.  In  the  subsequent  case,  however,  of  Johnson 
V.  Dalton,  where  the  contract  under  which  the  plaintiff,  who  had  shipped 
on  board  a  vessel  commanded  by  the  defendant,  for  a  voyage  to  Charleston, 
had  been  dissolved  by  the  conduct  of  the  latter,  while  in  the  intermediate 

Vol.  1.— 38 


594  smith's   leading   cases. 

port  of  New  York,  it  was  held  that  the  court,  in  the  exercise  of  its  discre- 
tion, would  support  an  action  for  an  assault  and  battery,  committed  on  board 
the  vessel  while  at  sea. 

There  is  another  and  more  general  exception  to  the  right  possessed  by  a 
common  law  tribunal,  to  take  cognizance  of  torts  committed  on  the  high 
seas.  If  the  subject-matter  of  the  action  be  a  question  of  prize,  it  would 
seem  perfectly  well  settled,  that  there  is  no  common  law  jurisdiction.  Pen- 
hallow  V.  Doane,  1  Dallas,  220.  In  order,  however,  that  a  trespass  com- 
mitted at  sea,  should  assume  the  character  of  a  tort,  growing  out  of  a  ques- 
tion of  prize,  it  is  necessary  that  there  should  have  been  an  express  design 
to  capture  as  prize.  The  mere  fact  of  pursuing  a  vessel,  under  the  impres- 
sion that  that  she  belongs  to  a  belligerent,  without  any  intention  of  capture 
applicable  to  her  real  character  as  neutral,  will  not  render  her  destruction 
by  a  collision  which  occurs  through  the  negligence  of  the  pursuing  vessel, 
an  incident  to  a  question  of  prize,  or  a  matter  of  exclusive  admiralty  juris- 
diction.    Percival  v.  Hickey,  18  Johns.  257. 

Where  however,  a  real  intention  to  capture  as  prize  has  existed,  formed 
with  full  reference  to  the  prima  facie  character  of  the  vessel,  as  apparent  on 
her  papers,  a  previous  defect,  or  subsequent  abuse  of  authority,  on  the  part 
of  the  captors,  will  not  prevent  the  jurisdiction  of  the  admiralty  from  vest- 
ing, to  the  exclusion  of  the  authority  of  the  courts  of  common  law.  Hallet 
V.  Novion,  (in  error,)  16  Johns.  327. 

It  has  been  decided  by  the  Supreme  Court  of  the  United  States,  that  their 
admiralty  jurisdiction  extends  to  cases  occurring  between  the  vessels  and 
persons  of  aliens ;  at  all  events,  where  the  parties  do  not  object,  on  first 
ajjpearing  in  the  cause.     Mason  v.  Ship  Blaireau,  2  Cranch,  240. 

H. 


^369]  TRUEMAN   V.   FENTON. 


HIL.— 17  GEO.  3.  B.  R, 
[reported,  cowp.  544.] 

A  bankrupt,  after  a  commission  of  bankruptcy  sued  out,  may,  in  consideration  of  a  debt 
due  before  the  bankruptcy,  and  for  which  the  creditor  agrees  to  accept  no  dividend  or 
benefit  under  tlie  commission,  make  such  a  creditor  a  satisfaction  in  part  or  for  the 
v.hole  of  his  debt,  by  a  new  undertaking  or  agreement. — And  assumpsit  will  lie  upon 
such  new  promise  or  undertaking. 

This  was  an  action  on  a  promissory  note  bearing  date  the  lllh  February, 
1775.  payable  to  one  Jacob  Trueman  (the  plaintiff's  brother,)  three  months 
after  date,  for  07/.,  and  indorsed  by  him  to  the  plaintiff. 

The  declaration  contained  other  counts  for  goods  sold,  money  had  and 
received,  and  on  an  account  stated. — The  defendant  pleaded,  1st,  non 
assumpsit;  2ndly,  "that  on  the  19ih  January,  1775,  he  became  bankrupt. 


TRUE  MAN    V.     FENTON. 


595 


and  that  the  debt  for  which  the  said  note  was  given  was  due  to  the  plaintiff 
before  such  time  as  he,  the  defendant,  became  bankrupt;  and  that  the  note 
was  given  to  Joseph  Trueman  for  tire  use  of,  and  for  securing  to  the  said 
plaimiff  his  debt  so  due."     The  cause  was  tried  before  Lord  Mansfield  at 
[he  sittino-  after  Michaelmas  term,  1776,  when  the  jury  found  a  verdict  for 
the  plaintiff,  damages  72/.  12s.  costs  40s.,  subject  to  the  opinion  of  the  court 
upon  a  special  case,  stating  the  answer  of  the  plaintift  in  this  action,  to  a 
bill   filed  ao-ainst  him  in  the  Exchequer  by  the  present  defendant  for  a 
discovery  of  the  consideration  of  the  note  :  and  the  substance  of      3^^. 
which  was  *as  follows  :  "  that  on  the  15th  of  December,  1774,  the 
defendant  Fenton  purchased  a  quantity  of  linen  of  the  plaintiff  Trueman; 
and  it  being  usual  to  abate  5/.  per  cent.,  to  persons  of  the  defendant  s  trade, 
the  price,  after  such  abatement  made,  amounted  to  126/.  18s.     Ihat  at  the 
time  of  the  sale  it  was  agreed,  that  one-half  of  the  purchase-money  should 
be  paid  at  the  end  of  six  weeks,  and  the  other  half  at  the  end  of  two  months  ; 
and  in  consideration  thereof,  the  plaintiff  Trueman  drew  two  notes  on  the 
defendant  for  63/.  9s.  each,  payable  to  his  own  order,  at  six  weeks  and  two 
months  respectively.    That  the  defendant  accepted  the  notes,  and  thereupon 
the  plaintiff  gave  him  a  discharge  for  the  sum."     He  then  denied  that  he 
had  proved  or  claimed  any  debt  or  sum  of  money  under  the  commission; 
but  set   forth,  that  he  acquainted  the   defendant  he  was  surprised  at  his 
ungenerous  behaviour  in  purchasing  so  large  a  quantity  of  linen  ot  him  at 
the  eve  of  his  bankruptcy,  and  informed  him  he  had  paid  away  the  above 
two  notes  :  upon  which  the  defendant  pressed  him  to  take  up  the   two 
notes,  and  proposed  to  give  him  a  security  for  part  of  the  debt.     That  alter- 
wards,  on  the  11th  of  February,  1775,  the  defendant  called  upon  the  plam- 
tiff,  and  voluntarily  proposed  to  secure  to  him  the  payment  of  67/.,  in  satis- 
faction of  his  debt,  if  he  would  take  up  the  two  notes,  and  cancel  or  deliver 
them  up  to  the  defendant.      That  the  plaintiff  agreed  to  accept  this  propo- 
.  sal  with  the  approbation  of  his  attorney,  and  desired  the  note  to  be  made 
payable  to  his  brother  Joseph  Trueman   or  order,  three  months  after  date. 
Tliat  he  took  up  the  two  acceptances  and  delivered  them  to  the  defendant 
to  be  cancelled,  and  acceped  the  above  note  for  67/.,  in  satisfaction  and  dis- 
charge thereof.  That  a  commission  of  bankruptcy  issued  against  the  defend- 
ant o'ii  the  19th  of  January,  1775,  and  that  the  bankrupt  obtained  his  certi- 
ficate on  the  17th  of  April  following."     The  question  referred  was,  whether 
the  facts  above  stated  supported  the  merits  of  the  defendant's  plea?      If 
they  did  not,  then  a  verdict  was  to  be  entered  for  the  plaintiff  on  the  gene- 
ral issue.     But  if  the  merits  of  the  second  plea  supported  the  defendant's 
case,  then  a  verdict  was  to  be  entered  for  the  defendant  on  that  plea. 

Mr.  BuUer  for  the  plaintiff  argued,  that  the  note,  *though  given  ^^g^p 
after  the  bankruptcy,  was  in  this  case  binding  upon  the  defendant,  L 
and  therefore  the  certificate  was  no  bar  to  the  present  action.  1st,  Because 
the  goods,  though  sold  before  the  bankruptcy,  were  sold  on  credit,  and  not 
to  be  paid  for  till  a  future  day  :  therefore,  if  no  security  at  all  had  been  given, 
the  debt  could  not  have  been  proved  under  the  commission  ;  because  such 
a  case  does  not  fall  within  the  provision  of  stat.  7  Geo.   1,  c.  31.t     If  not, 

t  See  now  6  G.  4,  c,  16,scct.  51. 


596  smith's  leading   cases. 

this  is  simply  the  case  of  a  sale  of  goods  on  future  credit,  for  which  the 
vendor  receives  a  note  after  the  vendee  is  become  bankrupt :  because  the 
two  drafts,  drawn  by  the  plaintiff  on  the  defendant  at  the  time  of  the  sale, 
and  accepted  by  the  defendant,  could  not  vary  the  agreement :  it  was  still  a 
sale  on  future  credit,  and  no  debt  due  till  after  the  bankruptcy.  Besides, 
they  were  afterwards  delivered  up.  If  no  debt  was  due  at  the  time  of  the 
bankruptcy,  the  merits  of  the  plea  are  clearly  not  proved  :  for  the  merits  are, 
that  the  debt  was  then  due.  Now  it  clearly  was  not  due,  and  therefore  the 
certificate  was  no  bar  to  the  demand.  2ndly.  Supposing  it  could  be  con- 
tended, that  there  was  any  thing  like  a  debt  due  before  the  bankruptcy,  yet 
the  plaintiff  upon  the  facts  stated  is  still  entitled  to  recover  upon  the  note  in 
question.  The  consideration  was  for  a  fair  bona  fide  debt,  without  any  mix- 
ture of  fraud  or  pretence  of  undue  advantage  by  the  plaintiff.  On  the  con- 
trary, there  Avas  a  gross  fraud  on  the  part  of  the  defendant,  in  obtaining  the 
goods  upon  the  eve  of  his  becoming  bankrupt;  and  the  conviction  of  such 
his  misconduct  was  the  inducement  with  him  to  offer  the  security  now  in 
dispute.  If  he  were  to  discharge  the  whole  original  debt,  it  would  not  be 
more  than  was  due,  and  what  in  conscience  he  ought  to  pay.  But  here  the 
plaintiff  has  agreed  to  accept  much  less  than  in  conscience  was  due  to  him. 
If  so,  like  every  other  debt  that  a  man  is  bound  in  conscience  to  discharge, 
it  is  a  good  ground  for  raising  an  assumpsit.  The  slightest  acknowledg- 
ment is  sufficient  to  revive  a  debt  barred  by  the  Statute  of  Limitations.  So, 
where  a  man,  after  he  comes  of  age,  promises  to  pay  a  debt  contracted  during 
his  minority,  assumpsit  lies.  As  to  the  case  of  a  promise  by  a  bankrupt  to 
pay  a  debt  in  consideration  of  a  creditor's  signing  his  certificate,  that  is  made 
^  void  by  *ihe  statute  5  Geo.  2,  c.  30,  sect.  11.     But  even  that  would 

L  J  have  been  a  good  ground  of  action  before  the  statute  ;  and  it  is  the 
only  exception  made.  The  certificate,  no  doubt,  is  a  provision  for  benefit  of 
the  bankrupt.  But  he  may  waive  it ;  and  here  he  has  waived  it  for  a  good 
and  valuable  consideration.  If  so  he  is  bound  by  the  contract.  In  addition 
to  this  general  reasoning,  he  cited  the  case  of  Lewis  v.  Chase,  2  P.  Wms. 
620  ;  and  Barnardiston  v.  Copeland,  ai^ued  in  the  Common  Pleas,  in  Hilary 
and  Easter  terms,  1761,  MSS. 

Mr.  Davenport,  contra,  for  the  defendant,  contended  that  the  plaintiff  had 
no  other  remedy  for  his  debt,  but  by  resorting  with  the  rest  of  the  creditors 
to  the  commission.  That  the  transaction,  though  coloured  over,  was  clearly 
intended  as  an  evasion  of  the  bankrupt  laws,  and  therefore  manifestly  illegal. 
That  the  plaintiff's  taking  up  the  two  drafts,  and  accepting  another  security 
short  of  his  real  debt,  could  in  no  respect  be  a  new  consideration  to  the 
defendant  ;  because  he  was  at  all  events  discharged  from  them,  by  his  cer- 
tificate ;  and  as  to  the  objection  that  the  original  debt  itself  was  not  within 
the  Stat.  7  Geo.  1,  c.  31,  and  therefore  could  not  have  been  proved  under 
the  commission,  it  clearly  m.ight,  allowing  a  rebate  of  interest  for  the  time  of 
the  credit  given.  That  the  question  depended  solely  upon  the  construction 
of  the  bankrupt  laws,  and  particularly  the  stat.  5  Geo.  2,  c.  30  ;  by  which 
it  was  clear,  that  where  such  a  promise  or  undertaking  is  made  by  a  bank- 
rupt before  his  certificate  obtained,  it  is  void.  That  any  other  construction 
would  open  a  door  to  that  collusion  respecting  the  certificate  which  the 
statute  meant  to  avoid,  and  at  the  same  time  be  highly  injurious  to  the 


T  R  U  E  M  A  N      V.     F  E  N  T  O  N.  597 

bankrupt.     Therefore  he  prayed  judgment  might  be  entered  for  the  defen- 
dant. 

Lord  Mansfield. — The  plea  put  in,  in  this  case,  is,  that  the  debt  was  due 
at  the  time  of  the  act  of  bankruptcy  committed  ;  and  on  that  plea,  in  point 
of  form,  there  was  a  strong  objection  made  at  the  trial,  that  the  allegation 
was  not  strictly  true:  because,  at  the  time  of  the  sale,  credit  was  given  to  a 
future  day  ;  which  day,  as  it  appeared  in  evidence,  was  subsequent  to  the 
act  of  bankruptcy  committed.  To  be  suje,  on  the  form  of  the  plea,  ^-^0701 
the  ^defendant  must  fail.  But  I  never  like  to  entangle  justice  in  L  J 
matters  of  form,  and  to  turn  parties  round  upon  frivolous  objections  where  I 
can  avoid  it.  It  only  tends  to  the  ruin  and  destruction  of  both.  I  put  it, 
therefore,  to  the  counsel  on  the  part  of  the  plaintiff  to  give  up  the  objection  in 
point  of  form,  and  to  take  the  opinion  of  the  court,  whether,  according  to  the 
facts  and  truth  of  the  case,  the  defendant  could  have  pleaded  his  certificate 
in  bar  of  the  debt  in  question.  And  in  case  they  had  refused  to  do  so,  I  should 
have  left  it  to  the  jury  upon  the  merits.  The  counsel  for  the  plaintiff  very 
properly  gave  up  the  point  of  form.  The  question,  therefore,  upon  the  case 
reserved,  is  worded  thus  :  Whether  the  facts  support  the  merits  of  the  de- 
fendant's plea  ?  That  is,  whether  on  the  merits  of  the  case,  properly  pleaded, 
the  certificate  of  the  defendant  would   1^—  '-" "  "  ^'"    '"  ^"«   piainiin^s 

action Now,  in  this  caso,  there  is  no  fraud,  no  oppression,  no  scheme 

xvhnt^omror,  on  the  part  of  the  plaintiff  to  deceive  or  impose  on  the  defen- 
dant ;  and  as  to  collusion  with  respect  to  the  certificate,  where  a  creditor 
exacts  terms  of  his  debtor  as  the  consideration  for  signing  his  certificate,  and 
obtains  money  or  a  part  of  his  debt  for.  so  doing,  the  assignees  may  recover 
it  back  in  an  action.  But  that  is  not  the  case  here.  So  far  from  it,  the 
transaction  itself  excluded  the  plaintiff  from  having  any  thing  to  do  with  the 
certificate.  No  man  can  vote  for  or  against  the  certificate  till  he  has  proved 
his  debt.  Here  the  plaintiff'  delivers  up  the  two  drafts  bearing  date  prior 
to  the  act  of  bankruptcy,  and  by  agreement  accepts  one  for  little  more  than 
half  their  amount,  bearing  date  after  the  commission  of  bankruptcy  sued 
out.  Most  clearly,  therefore,  he  could  not  have  proved  that  note  under  the 
commission  ;  and  if  not,  he  could  have  nothing  to  do  with  the  certificate. — 
That  brings  it  to  the  general  question,  whether  a  bankrupt,  after  a  commis- 
sion of  bankruptcy  sued  out,  may  not,  in  consideration  of  a  debt  due  before 
the  bankruptcy,  and  for  which  the  creditor  agrees  to  accept  no  dividend  or 
benefit  under  the  commission,  make  such  creditor  a  satisfaction  in  part  or 
for  the  whole  of  his  debt,  by  a  new  undertaking  and  agreement  ?  A  bank- 
rupt may  undoubtedly  contract  new  debts  ;  therefore,  if  there  is  an  objec- 
tion to  his  reviving  an  old  debt  by  a  new  promise,  it  must  be  founded  upon 
the  ground  of  its  *being  nudum  pactum.  As  to  that,  all  the  debts  p.^q^n 
of  a  bankrupt  are  due  in  conscience,  notwithstanding  he  has  obtained  L  -I 
his  certificate  ;  and  there  is  no  honest  man  who  does  not  discharge  them,  if 
he  afterwards  has  it  in  power  to  do  so.  Though  all  legal  remedy  may  be 
gone,  the  debts  are  clearly  not  extinguished  in  conscience.  How  far  have 
the  courts  of  equity  gone  upon  these  principles?  Where  a  man  devises 
his  estate  for  payment  of  his  debts,  a  court  of  equity  says  (and  a  court  of 
law  in  a  case  properly  before  them  would  say  the  same,)  all  debts  barred  by 
the  Statute  of  Limitations  shall  come  in  and  share  the  benefit  of  the  devise; 
because  they  are  due  in  conscience  :  therefore,  though  barred  by  law,  they 


598  smith's   leading   cases. 

shall  be  held  to  be  revived,  and  charged  by  the  bequest.  What  was  said  in 
the  argument  relative  to  the  reviving  a  promise  at  law,  so  as  to  take  it  out 
of  the  Statute  of  Limitations,  is  very  true.  The  slightest  acknowledgment 
has  been  held  sufficient ;  as  saying,  "  prove  your  debt  and  I  will  pay  you  ;" 
— "I  am  ready  to  account,  but  nothing  is  due  to  you:"  and  much  slighter 
acknowledgments  than  these  will  take  a  debt  out  of  the  statute.  So  in  the 
case  of  a  man  who,  after  he  comes  of  age,  promises  to  pay  goods  or  other 
things,  which,  during  his  minority,  one  cannot  say  he  has  contracted  for, 
because  the  law  disables  him  from  making  any  such  contract,  but  which 
he  has  been  fairly  and  honestly  supplied  with,  and  which  were  not  merely 
to  feed  his  extravagance,  but  reasonable  for  him  (under  his  circumstances) 
to  have;  such  promise  shall  be  binding  upon  him,  and  make  his  former 
undertaking  good. — Let  us  see  then  what  the  transaction  is  in  the  present 
case.  The  bankrupt  appears  to  me  to  have  defrauded  the  plaintiff",  by 
drawing  him  in,  on  the  eve  of  a  bankruptcy,  to  sell  him  such  a  quantity  of 
goods  on  credit.  It  was  grossly  dishonest  in  him  to  contract  such  a  debt  at 
a  time  when  he  must  have  known  of'  his  own  insolvency,  and  which  it  is 
clear  the  plaintiff  had  not  the  smallest  suspicion  of,  or  he  would  not  have 
cr'ivpn  r.redit.  and  a  day  of  paj'ment  in  futuro.  On  the  other  hand,  what  is 
the  conduct  of  the  plamun  ;  1:1.  ^-^iinquishes  all  hope  or  chance  of  benefit 
from  a  dividend  under  the  commission,  by  fo.hearing:  to  prove  his  debt  ; 
r*''75l  S'^'<^s  up  the  securities  he  had  rccelirpcl  *from  th«  V.nnl.'rnpt.  anrl 
L  J  accepts  of  a  note,  amounting  to  little  more  than  half  the  real  debt^ 
in  full  satisfaction  of  his  whole  demand.  Is  that  against  conscience  ?  Is  it 
not,  on  the  contrary,  affair  consideration  for  the  note  in  question  ?  He 
might  foresee  prospects  from  the  way  of  hfe  the  bankrupt  was  in,  which 
might  enable  him  to  recover  this  part  of  his  debt,  and  he  takes  his  chance  ; 
for  till  then  he  could  get  nothing  by  the  mere  imprisonment  of  his  person. 
He  uses  no  threats,  no  menace,  no  oppression,  no  undue  influence  ;  but  the 
proposal  first  moves  from,  and  is  the  bankrupt's  own  voluntary  request. 
The  single  question  then  is,  whether  it  is  possible  for  the  bankrupt,  in  part  or 
for  the  whole,  to  revive  the  old  debt  ?  As  to  that,-Mr.  Justice  Aston  has  sug- 
gested to  me  the  authority  of  Dillon  v.  Bailey,  where  the  court  would  not 
hold  to  special  bail,  but  thought  reviving  the  old  debt  was  a  good  considera- 
tion. The  two  cases  cited  by  Mr.  BuUer  are  very  material.  Lewis  v. 
Chase,  1  P.  Wins.  620,  is  much  stronger  than  this  ;  for  that  smelt  of  the 
certificate;  and  the  Lord  Chancellor's  reasoning  goes  fully  to  the  present 
question.  Then  the  case  of  Barnardiston  v.  Coupland,  in  C.  B.,  is  in  point. 
Lord  Chief  Justice  Willes  there  says,  "that  the  revival  of  an  old  debt  is  a 
sufficient  consideration,"  That  determines  the  whole  case.  Therefore,  I 
am  of  opinion,  that  if  the  plea  put  in  had  been  formally  pleaded,  the  merits 
of  the  case  would  not  have  been  sufficient  to  bar  the  plaintiff's  demand. 

Aston,  Justice — As  a  case  of  conscience,  I  am  clearly  of  opinion  that  the 
plaintiff  is  entitled.  Wherever  a  party  waives  his  right  to  come  in  under 
the  commission,  it  is  a  benefit  to  the  rest  of  the  creditors.  In  the  case  of 
Dillon  V.  Bailey,  the  court  on  the  last  day  of  the  term  were  of  opinion, 
'■'  that  the  defendant  could  not  be  held  to  special  bail  ;  yet  they  would  not 
say  that  he  might  not  revive  the  old  debt,  which  was  clearly  due  in  con- 
science." A  bankrupt,  may  be,  and  is,  held  to  be  discharged  by  his  certi- 
ficate from  all  debts  due  at  the  time  of  the  commission  :  but  still  he  may 


TRUE  MAN    V.     FENTON. 


599 


make  himself  liable  by  a  new  promise.  If  he  could  not,  the  provision  in 
the  St.  5  Geo.  2,  c.  30,  sec.  11,  by  which  every  security  for  the  payment 
of  any  debt  due  before  the  party  became  bankrupt,  as  a  consideration  to  a 
creditor  to  sign  his  certificate,  *is  made  void,  would  be  totally  nuga-  p^o^g-i 
tory.  Lord  Mansfield  added  that  that  this  observation  was  ex-  L  J 
tremely  forcible  and  strong. 

Per  Cur.     Judgment  for  the  plaintiff. 


On  the  same  ground  stands  a  promise 
to  pay  a  debt  barred  by  the  Statute  of 
Limitations,  Heyling  v.  Hastings,  Lord 
Raym.  389  ;  or  by  the  provisions  of  an 
jnsolvent  act,  Best  v.  Barber,  S.  N.  P. 
59;  or  contracted  during  inflincy,  South- 
erton  v.  Whitlocke,  1  Str.  090.  But  in 
all  these  cases  the  legislature  has  inter- 
vened. In  the  case  of  bankruptcy,  stat. 
6  G.  4,  cap.  16,  sec.  131,  enacts,  "  that 
no  bankrupt,  after  his  certificate  shall 
have  been  allowed,  shall  be  liable  to  pay 
or  satisfy  any  debt,  claim,  or  demand, 
from  which  he  shall  have  been  discharg- 
ed by  virtue  of  such  certificate,  or  any 
part  of  such  debt,  claim,  or  demand, 
upon  any  contract,  promise,  or  agree- 
ment made,  or  to  be  made,  after  the 
suing  out  of  the  commission  unless  such 
promise,  contract,  or  agreement  be 
made  in  icriting,  signed  by  the  bank- 
rupt, or  by  some  person  thereto  lawfully 
authorised  in  loriting  by  such  bank- 
rupt." In  the  case  of  the  Statute  of 
Limitations,  stat.  9  G.  4,  c.  14,  requires 
that  the  acknowledgment  which  is  to 
take  a  case  out  of  its  operation  shall  be 
in  loriiing  signed  by  the  party  to  be 
charged  thereby;  leaving,  however,  the 
effect  of  part  payment  as  it  stood  before 
the  act.  See  Whitcomb  v.  Whiting, 
ante,  et  notas.  And  in  construing  this 
act  it  has  been  thought  that  a  general 
loritten  acknowledgment  of  liability  can- 
not be  applied  by  parol  evidence  to  the 
particular  debt  which  it  is  desired  to 
exempt  from  the  operation  of  the  statute. 
Kennett  v.  Milbank,  8  Bing.  38,  Qucere 
however  and  see  Dickenson  v.  Hatfield, 

1  M.   &  11.  141;  Waters  v.  Torakins, 

2  G  M.  &  R.  726;  Bird  v.  Gammon,  3 
Bing.  N.  C.  888.  In  the  case  of  the 
insolvent,  stat.  7  Geo.  4,  c.  57,  sec.  61, 
directed,  and  1  &  2  Vict.  c.  110,  sec. 
91,  now  directs,  that  after  any  person 
shall  have  become  entitled  to  the  bene- 
fit of  that  act,  by  any  such  adjudication 


as  therein  aforesaid,  no  writ  of  fi.  fa.  or 
elegit  shall  issue  on  any  judgment  ob- 
tained against  him  for  any  debt  or  sum 
of  money  with  respect  to  which  he 
shall  have  so  become  entitled,  7ior  in 
any  action  on  any  new  contract  or  secu- 
rity for  payment  thereof,  except  upon 
the  judgment  entered  up  against  such 
prisoner,  according  to  that  act :  and  if 
any  suit  or  action  be  brought,  or  any 
scire  facias  issued  against  any  such  per- 
son, his  heirs,  executors,  administrators, 
or  assigns,  for  any  such  debt  or  sum  of 
money,  or  on  any  new  contract  or  secu- 
rity for  payment  thereof,  or  upon  any 
judgment  obtained  against,  or  any  stat- 
ute or  recognizance  acknowledged  by 
such  person  for  the  same,  except  as 
aforesaid,  it  shall  be  lawful  for  such  per- 
son, his  heirs,  executors,  or  administra- 
tors, to  plead  generally,  that  such  person 
was  duly  discharged  according  to  this 
act,  by  the  order  of  adjudication  made  in 
that  behalf;  and  that  such  order  remains 
in  force,  without  pleading  any  other 
matter  specially,  whereto  the  plaintiff 
may  reply  generally,  and  deny  the  mat- 
ter pleaded  as  aforesaid,  or  reply  any 
other  matter  or  thing,  which  may  shov\r 
the  defendant  not  to  be  entitled  to  the 
benefit  of  this  act,  or  that  such  person 
was  not  duly  discharged,  according  to 
the  provisions  thereof,  in  the  same  man- 
ner as  the  plaintiff  or  plaintiffs  might 
have  replied  in  case  the  defendant  had 
pleaded  this  act,  and  a  discharge  by  vir- 
tue thereof,  specially.  The  defendant 
must  take  advantage  of  this  act  by 
pleading  at  the  proper  time,  for  the 
court  will  not  relieve  him  in  a  summary 
way,  as  by  setting  aside  a  judgment 
signed  on  a  warrant  of  attorney  to  con- 
fess judgment  in  an  action  on  a  bill 
given  for  the  old  debt.  Philpott  v.  Aslett, 
4  Tyrwh.  729.  Sed  vide  Smith  v.  Alex- 
ander, 5  Dowl.  13,  where  Williams,  J., 
set  aside  a  warrant  of  attorney ;    but 


600 


SMITHS     LEADING     CASES. 


there  no  action  had  been  brought,  so 
that  defendant  had  had  no  opportunity 
of  pleading.  If  properly  taken  advan- 
tage of,  the  act  is  a  defence,  even  though 
there  be  a  new  consideration  for  the  in- 
solvent's promise  to  discharge  the  old 
debt.  Evans  v.  Williams,  3  Tyrwh. 
226.  Lastly,  the  case  of  the  infant  is 
provided  for  by  st.  9  G.  4,  c.  14,  sec.  5, 
which  enacts  that  "  no  action  shall  be 
maintained  whereby  to  charge  any  per- 
|-^r..y-,-,  son,  *upon  any  promise  made 
'  J  after  full  age,  to  pay  any  debt 
contracted  during  infancy,  or  upon  any 
ratification,  after  tull  age,  of  any  promise 


or  simple  contract,  made  during  infancy, 
unless  such  promise  or  ratitication  shall 
be  made  by  some  writing  signed  by  the 
party  to  be  charged  therewith." 

Notwithstanding  the  above  enact- 
ments, the  principles  laid  down  in  liie 
text  continue  in  full  force,  and  apply  to 
contracts  entered  into  in  writing  accord- 
ing to  the  directions  of  the  respective 
acts  prescribing  that  ceremony,  exactly 
as  they  would  have  applied  to  parol  con- 
tracts conceived  in  similar  terms  before 
those  statutes.  In  the  case  of  the  in- 
solvent, indeed,  such  a  contract  is  now 
prohibited. 


See  the  American  cases  of  Mills  v.  Wyman,  Snevily  v.  Reed,  &c.  cited 
in  the  note  to  Lampleigh  v.  Brathwaite.  It  must  be  observed  that  Truman 
V.  Fenton  is  by  no  means  an  authority  for  the  position  that  a  promise  to 
pay  a  debt  discharged  by  a  certificate  of  bankruptcy  is  valid. 

In  «'  The  case  of  Field's  Estate,"  2  Rawle,  351,  it  was  said  by  Gibson, 
C.  J.,  to  be  "settled  by  a  train  of  decisions  not  now  to  be  questioned," — 
though,  how  this  opinion  came  to  be  adopted,  he  said,  that  he  was  at  a  loss 
to  imacrine — "  that  a  debt  discharged  by  a  certificate  of  bankruptcy,  is  an 
available  consideration  for  a  new  promise  :"  but  it  was  decided  that  where 
the  orio-inal  obligation  is  by  specialty,  the  subsequent  re-assumption  of  the 
debt  does  not  revive  the  specialty,  but  creates  only  a  simple  contract 
liability. 

H.  B.  W. 


[*378]       *CREPPS  V.   DURDEN  ET  ALIOS. 

TRIN.— 17  GEO.  3.  B.  R. 

[reported,  cowp.  640.] 

A  person  can  commit  but  one  offence  on  the  same  day,  "  by  exercising  liis  ordinary  calling 
on  a  Sunday,"  contrary  to  the  statute  29  Car.  2,  c.  7.  And  if  a  justice  of  peace  proceed 
to  convict  him  in  more  than  one  penalty  for  the  same  day,  it  is  an  excess  of  jurisdiction 
for  which  an  action  will  lie,  before  the  convictions  are  quashed.(u) 

This  was  an  action  of  trespass  brought  by  the  plaintiff  against  the  de^.,.j- 
dant,  for  breaking  into  his  house  and  taking  away  his  goods,  and  cjaverting 


(n)  Sec  an  analog-ous  case,  Brooks  and  another  v.  Glencross,  2  M.  &,  Rob.  62. 


CREPPS     V.     DURDEN.  601 

them  to  his  own  use  :  to  this  the  general  issue  was  pleaded,  and  the  cause 
came  on  to  be  tried  at  Westminster,  before  Lord  Mansfield,  at  the  sittings 
after  Easier  term,  1777  ;  when  a  verdict  was  found  for  the  plaintiff;  for 
three  several  sums  of  five  shillings  each,  and  costs  40s.,  subject  to  the 
opinion  of  the  court  upon  the  following  case.  "  That  the  plaintiff^  was 
convicted  of  selling  small  hot  loaves  of  bread,  the  same  not  being  any  work 
of  charity,  on  the  same  day  (being  Sunday)  by  four  separate  convictions, 
which  were  as  follows  :  '  Westminster  to  wit.  Be  it  remembered,  that  on 
the  10th  of  November,  1776,  Peter  Crepps,  of,  &c.,  baker  and  salter  of 
bread,  is  lawfully  convicted  before  me,  Jonathan  Durden,  one  of  his 
Majesty's  justices  of  the  peace  for  the  said  city  and  liberty  of  Westminster, 
for  unlawfully  doing  and  exercising  certain  worldly  labour,  business  and 
work  of  his  ordinary  calling  of  a  baker  in  the  parish  aforesaid,  by  selling  of 
small  hot  loaves  of  bread,  commonly  called  rolls,  the  same  not  being  any 
work  of  necessity  or  charity,  on  the  said  10th  of  November  being  |-^o«q-| 
the  Lord's  day,  commonly  called  Sunday,  contrary  *to  the  statute  L  -^ 
in  that  case  made  and  provided  ;  for  which  ofTence  I,  the  said  Jonathan 
Durden  have  adjudged,  and  do  hereby  adjudge,  the  said  Peter  Crepps  to 
have  forfeited  the  sum  of  five  shillings.'" 

The  three  other  convictions  were  verbatim  the  same,  without  any  vari- 
ation. The  case  then  proceeded  to  state,  that  the  defendant  Durden  issued 
the  four  warrants,  afterwards  stated,  to  the  other  defendants,  who  by  virtue 
of  those  warrants  levied  the  four  penalties  of  five  shillings  each,  and  the 
expenses.  The  first  of  these  four  warrants  run  thus  :  "  Westminster  to 
wit.  To  the  constables  of  St.  James's,  in  the  city  and  liberty  of  Westmins- 
ter. Whereas  information  has  been  made  before  me,  Jonathan  Durden,  one 
of  his  majesty's  j  ustices  of  the  peace  for  the  city  and  liberty  of  Westminster, 
that  Peter  Crepps,  baker  of,  &c.,  did  on  the  lOlh  day  of  November,  1776, 
being  the  Lord's  day,  commonly  called  Sunday,  exercise  his  trade  and 
ordinary  calling  of  a  baker,  by  selling  hot  loaves  of  bread,  contrary  to  the 
statute  in  that  case  made  and  provided  ;  and  whereas  the  said  Peter  Crepps 
has  been  duly  summoned  to  appear  before  me,  to  answer  to  the  said  informa- 
tion, but  has  contemptuously  refused  to  appear  to  answer  the  contents 
thereof;  and  whereas  upon  full  examination,  and  upon  the  oath  of  J,  H., 
the  said  Peter  Crepps  was  lawfully  convicted  before  me  of  the  offence  afore- 
said, whereby  he  has  incurred  the  penalty  of  five  shillings,  pursuant  to  the 
statute  in  that  case  made  and  provided  ;  therefore,  &c.,  &c."  The  words 
of  the  other  three  warrants  were  verbatim  the  same. 

The  first  question  reserved  was,  whether  in  this  action,  and  before  the 
convictions  were  quashed,  an  objection  could  be  made  to  their  legality  ?  If 
no  objection  could  be  made,  then  a  non-suit  was  to  be  entered.  But  in  case 
an  objection  to  their  legality  might  be  made,  then  the  question  was,  whether 
the  levy  under  the  three  last  warrants  could  be  justified  ?  If  not  justifiable, 
a  verdict  was  to  be  entered  for  the  plaintiff,  with  15s.  damages  and  40s. 
costs  ;  if  justifiable,  then  a  verdict  was  to  be  entered  for  the  defendants. 

Mr.  Buller  for  the  plaintiff",  as  to  the  first  point,  insisted,  that  wherever  a 
conviction  is  in  itself  clearly  bad,  it  is  open  to  the  party  to  take  the  objec- 
tion to  it  in  an  action  against  the  *justice  ;  and  it  is  no  answer  on  r*oQQ-i 
his  part  to  say,  that  the  conviction  is  not  quashed,  or  in  force  ;  be-  L  '  J 
cause  it  is  incumbent  upon  him  to  show  the  regularity  of  his  own  proceed- 


602  smith's   leading   cases. 

ings.  That  there  were  several  cases  to  this  purpose  ;  and  though  they 
were  decisions  at  Nisi  Prius,  yet,  as  they  were  uniform  in  laying  down  the 
same  doctrine,  they  ought  to  have  considerable  weight  in  this  case.  The 
first  he  should  mention  was  Hill  v.  Bateman,  1  Sir.  711  ;  not  for  the  prin- 
cipal matter  adjudged,  but  because  it  was  agreed  on  all  hands,  in  that  case, 
as  a  settled  point,  "that  in  all  actions  against  justices  of  the  peace,  they 
must  show  the^regularity  of  their  proceedings."  He  added,  that  he  had  a 
manuscript  note  of  the  same  case,  to  the  same  purport.  In  a  case  of  Moult 
V.  Jennings,  coram  Eyre,  Chief  Justice,  upon  trespass  and  false  imprison- 
ment against  the  defendant,  and  the  general  issue  pleaded,  it  appeared  that 
the  plaintiff" had  been  convicted  of  swearing;  and  Eyre  said,  if  the  nature 
of  the  oaths  had  not  been  specified  in  the  conviction,  so  that  they  might  ap- 
pear to  the  court,  the  conviction  would  have  been  void.  In  Stanbury  v. 
Bolt,  coram  Fortescue,  J.,  Trinity  11  George  1,  upon  trespass  for  taking  a 
brass  pan,  and  false  imprisonment,  it  did  not  appear  that  the  plaintifi'  had 
been  summoned  ;  and  the  conviction  was  adjudged  void  for  that  reason 
only.  In  Cole's  case,  Sir  William  Jones,  170,  it  was  held  by  the  whple 
court,  "  that  if  a  justice  does  not  pursue  the  form  prescribed  by  the  statute, 
the  party  need  not  bring  error,  but  all  is  void,  and  coram  non  judice." 
There  are  other  authorities  in  which  it  has  been  held,  that  an  action  will 
lie,  even  though  the  conviction  is  good  in  point  of  form,  if  it  is  not  supported 
by  the  truth  and  justice  ofihe  case.  There  was  one  in  Shropshire,  before 
Gould,  Justice,  where  the  jilaintiff'had  been  convicted  upon  the  game  laws, 
and  the  conviction  itself  good  in  point  of  form  :  but  the  party  was  not  in 
truth  an  object  of  the  game  laws;  whereupon  Gould  directed  the  jury  to 
find  for  the  plaintiff",  which  they  accordingly  did.  There  was  another  case 
in  Lancashire,  before  Mr.  Justice  Gould,  to  the  same  effect.  In  criminal 
cases  it  is  clear,  that  the  conviction  being  good  in  point  of  form  is  no  protec- 
tion to  the  justice  ;  and,  if  not,  why  should  it  be  so  in  a  civil  action  ?  If  he 
^„o,i  convict  illegally,  he  ought  not  to  be  sheltered,  and  an  action  is.  the 
L  J  *only  mode  of  redress  to  the  party  injured.  But,  if  the  formality 
of  the  conviction  Is  to  be  an  answer  to  the  action,  the  party  injured  would 
be  without  redress,  where  he  would  be  most  entitled  to  it ;  because  the  cau- 
tion of  the  justice,  to  be  correct  in  form,  would  increase  in  proportion  to  his 
intention  to  act  illegally.  In  Brucklesbury  v.  Smith,  2  Burr.  650,  every 
act  previous  to  the  conviction  is  set  out,  as  well  as  the  conviction  itself.  If 
this  case  had  happened  before  the  stat.  7  Jac.  l,c.  5,  Avhich  enables  justices 
of  the  peace  to  plead  the  general  issue,  and  give  the  special  matter  in  evi- 
dence, the  defendant  must  have  specially  set  forth  every  stage  of  the  pro- 
ceedings upon  the  record,  and  the  omission  of  any  one  fact  would  have  been 
fatal :  or,  if  upon  the  face  of  the  record  it  had  appeared  the  conviction  was 
illegal,  it  would  have  been  a  good  cause  of  demurrer.  Since  the  statute, 
his  defence  must  be  equally  good  in  evidence  :  for  the  statute  does  not  vary 
the  law  ;  it  only  meant  to  ease  the  justice  from  the  difficulty  and  risk  of 
special  pleading.  Even  in  cases  where  the  legislature  gives  a  summary 
form  of  conviction,  and  where  no  summons  is  necessary,  the  justices  must 
pursue  the  form  prescribed,  or  it  will  be  fatal.  Secondly,  upon  the  merits  : 
the  words  of  the  stat.  29  Car.  2,  c.  7,  are,  "  that  no  tradesman  or  other  per- 
son shall  do  or  exercise  any  worldly  labour,  business,  or  work  of  their  ordi- 
nary calling  on  the  Lord's  day,  works  of  necessity  and  charity  only  except- 


CREPPS     V.     DURDEN.  603 

ed."  In  Rex  v.  Cox,  2  Burr.  786,  the  court  held  "that  baking  puddings 
and  pies  was  within  the  exception  !"  and  if  so,  why  should  not  the  baking 
rolls  be  so  too  ?  But  what  is  decisive  is,  that  the  stat.  29  Car.  2,  c.  7,  gives 
no  summary  form  of  conviction  ;  whereas  the  convictions  produced  barely 
state  that  the  plaintiff  was  convicted  without  any  information,  summons, 
appearance,  or  evidence  being  stated.  In  point  of  form,  therefore,  all  four 
are  bad.  Lastly,  supposing  they  were  good  in  form,  the  three  last  are  an 
excess  of  the  justice's  jurisdiction  ;  for  the  offence  created  by  the  statute  is 
"  exercising  his  calling  on  the  Lord's  day."  If  the  plaintiff",  therefore,  had 
continued  baking  from  morning  till  night,  it  would  still  be  but  one  offence. 
Here  there  are  foUr  convictions  for  one  and  the  same  offi^nce  ;  consequently, 
as  to  three,  there  is  an  excess  of  jurisdiction  :  and  if  so,  all  is  void,  and 
coram  non  judice  ;  *and  an  action  will  lie,  not  only  against  the  jus-  j-^ 00.21 
tice,  but  likewise  against  the  officers".  To  this  point  he  cited  liar-  L 
dress,  484,  and  concluded  by  prayin;?'judgment  for  the  plaintiff". 

Mr.  T.  Cotvper  contra,  for  the  defendant,  contended,  \.  That  by  the 
bare  production  of  the  conviction  at  the  trial  the  cause  was  at  an  end,  and 
the  court  estopped  from  any  further  inquiry.  That  it  was  the  general  appre- 
hension and  prevailing  opinion  of  the  profession,  founded  in  constant  prac- 
tice, that  a  conviction  in  a  matter  of  which  the  justice  had  jurisdiction,  must 
be  removed  by  certiorari  and  quashed,  before  it  can  be  questioned  at  Nisi 
Priuo.  If  ho  Kasr  no  jurisdiction,  no  doubt  but  all  is  coram  non  judice,  and 
void.  But  here  the  justice  had  jurisdiction  ;  and  it  so,  witn  deterence  to 
the  opinion  of  Mr.  Justice  Gould,  in  the  cause  tried  before  him  in  Shrop- 
shire, the  conviction,  as  to  the  matter  of  fact  contained  in  it,  is  conclusive  in 
favour  of  the  justice  in  an  action,  though  it  is  not  so  in  an  information.  If 
it  were  not,  instead  of  the  mischief  to  be  apprehended  from  the  oppression 
of  the  justice,  no  one  would  act  in  the  commission.  2.  As  to  the  objections 
which  have  been  taken  to  the  convictions  in  point  of  form,  he  said,  it  would 
be  time  enough  to  answer  them  when  the  convictions  were  removed  and 
stood  in  the  paper  for  argument.  At  present  it  was  sufficient  to  observe 
that  they  continued  as  so  many  judgments  on  record, "and,  as  such,  conclu- 
sive, till  reversed  by  appeal,  or  quashed  by  this  court.  He  agreed  the  stat. 
7  Jac.  1,  c.  5,  did  not  vary  the  law  :  but  insisted,  that  before  that  statute,  it 
would  have  been  a  good  plea  for  the  defendant  to  have  stated,  that  the  plain- 
tiff'was  convicted,  &c.,as  in  this  case  ;  and  if  the  plaintiff  had  traversed  the 
conviction,  the  defendant  might  have  demurred.  The  sole  ground  and 
object  of  taking  away  the  certiorari  in  the  several  acts  of  parliament  for  that' 
purpose,  was  to  prevent  vexatious  suits  against  justices  for  mere  informali- 
ties in  their  proceedings.  But  they  still  remain  liable  to  an  information  if 
they  wilfully  act  wrong.  .  This  court  has  often  lamented  when  obliged  to 
quash  a  conviction  for  want  of  form,  because  it  opens  a  door  to  an  action. 

As  to  this  being  but  one  continued  offence,  it  might  be,  that  it  was  carried 
on  at  four  different  places  ;  for  there  is  *evidence  of  four  different  ^^0001 
acts,  and  the  court  will  not  presume  the  contrary  against  the  justice.  L  J 
But,  if  the  nature  of  the  offence  is  such,  that  it  could  only  be  committed  once 
in  the  same  day,  still  the  plaintiff"  has  no  remedy,  while  the  convictions 
are  in  force,  but  by  removing  them  into  this  court  to  be  quashed  for  illegality. 

hor d  Alansjield. — May  there  not  be  this  point,  that  the  justice  had  no 
jurisdiction,  after  convicting  the  plaintiff'  in  the  first  penalty  ?     The  act  of 


604  smith's   leading   cases. 

parliament  gives  authority  to  punish  a  man  for  exercising  his  ordinary  call- 
ing- on  Sunday.  The  justice  exercises  his  jurisdiction,  by  convicting  him 
in  the  penalty  for  so  doing.  But  then,  he  has  proceeded  to  convict  him  for 
three  other  offences  in  the  same  day. 

Mr.  Cowper, — If  he  has  done  so,  it  is  only  a  ground  for  quashing  the 
convictions  ;  but  no  priority  appears  to  give  legality  to  one  in  preference  to 
the  other. 

Lord  3IansJield. — This  point  you  agree  in  ;  that  if  the  justice  had  no 
jurisdiction,  it  is  open  to  inquiry  in  an  action.  Now,  if  there  are  four  con- 
victions, for  one  and  the  same  offence  committed  on  one  and  the  same  iiay, 
three  of  them  must  necessarily  be  bad  ;  and,  if  so,  it  does  not  signify  as  to 
the  merits  of  the  action  which  of  the  four  is  legal,  or  which  illegal. 

I  do  not  remember  that  at  the  trial  it  was  contended  the  plaintiff  would 
be  entitled  to  recover  if  the  convictions  were  informal ;  or  that  any  objec- 
tion was  taken  to  their  formality  there.  The  single  question  intended  to  be 
tried  was,  whether  there  could  be  more  than  one  penalty  incurred  for 
exercising  a  man's  ordinary  calling  on  one  and  the  same  Sunday  ?  As  to 
that  there  can  be  no  doubt :  the  only  doubt  was,  whether  that  objection 
could  be  taken  at  the  trial  before  the  convictions  were  quashed.  In  the 
extent  in  which  the  argument  upon  that  point  has  proceeded,  it  is  a  matter 
of  considerable  consequence  ;  and,  as  a  general  question,  I  should  be  glad 
to  think  of  it. 

^f-iscon,  Justice.  The  court  Will  never  grant  an  information,  unless  the 
conviction  is  quashed.  Rex  v.  Heber,  2  Str.  915.  As  to  the  general  ques- 
tion before  the  court,  suppose  the  justice  were  to  convict  for. a  single  offence, 
where  no  offence  at  all  had  been  committed  ;  would  not  an  action  lie  in  that 
-.  case  ?  If  it  would,  why  not  in  this,  *where  there  are  four  convic- 
*-  -^  tions  for  one  and  the  same  offence  ?  It  seems  to  me  that  the  baking 
every  roll  might  as  well  have  been  charged  us  a  separate  offence. 

Cur.  adv.  vult. 


Afterwards,  on  Wednesday,  June  18th,  in  this  term.  Lord  Mansfield,  after 
stating  the  case  at  large^  delivered  the  unanimous  opinion  of  the  court  as 
follaws  : — -Upon  the  trial  of  this  cause,  no  objection  was  made  to  the  for- 
mality of  the  convictions  :  I  doubt  whether  they  were  read,  and  for  this 
reason  ;  because,  by  the  state  I  have  of  them,  they  appear  different  from 
the  warrants  :  for  the  convictions  take  no  notice  of  any  summons!  nor  of 
any  evidence:}:  upon  oath  given  ;  though  the  warrants  lake  notice  of  a  sum- 
mons, of  the  defendant's  not  appearing  to  that  summons,  of  an  information 
laid  and  evidence  given  upon  oath.  This  objection  would  have  gone  to 
all  the  four  cases  equally  ;  but  at  the  trial,  no  objection  whatever  was  made 
to  the  first  conviction  or  warrant.  But  the  objection  made  was  this  ;  that 
allowing  the  first  conviction  and  warrant  to  be  good,  the  three  others  were 
an  excess  of  the  jurisdiction  of  the  justice,  and  beyond  it :  for  that  on  the 
true  construction  of  the  stat.  29  Car.  2,  c.  7,  there  can  be  but  one  offence, 
attended  with  one  single  penally,  on  the  same  day. 

tNor  that  the  defendant  made  default.  See  R.  v.  Allington,  2  Str.  673  ;  R.  v.  Vcnables, 
id.  630  ;  R.  v.  Stone,  1  East,  64!). 

X  See  R.  V.  Lovett,  7  T.  R.  15:2 ;  R.  v.  Theed,  2  Str.  919  ;  R.  v.  Smitli,  8  T.  R.  583. 


CREPPS     V.     DURDEN. 


605 


In  answer  to  this  it  was  objected,  on  the  part  of  the  defendants,  that  no 
such  objection  could  be  taken  to  the  convictions  till  after  they  had  been 
quashed  in  this  court;  and  that  if  a  case  were  to  be  made  with  regard  to 
Lt,it  must  be  taken  upon  the  question,  whether  accord.ng  to  the  rue 
con  truction  and  meaning  of  the  act,  the  party  cou  d  be  guilty  of  i-^^p  ated 
offences  on  one  and  the  same  day?  Therefore  ^^e  ques^^ons  sta  ed  fo 
the  opinion  of  the  court  on  the  present  case  are  first,  ^  Whether,  u  this 
action  and  before  the  convictions  were  quashed,  an  objection  could  be 
made  to  their  legality?  If  the  court  should  be  of  opinion  no  objec  ion 
could  be  made,  then  a  nonsuit  to  be  entered  up  ;  but,  m  case  t^e  objection 
mi..ht  be  made,  then,  2ndly.  Whether  the  levy  made  under  the  three  last 
wan-ants  could  be  justified  ?"     The  first  question  is,  "  whether  any  -. 

objection  can  be  made  to  the  legality  of  the  convictions  *before  L  J 
Ihey  were  quashed."  In  order  to  see  whether  it  can  we  mil  state  the 
objection:  it  is  this ;  that  here  are  three  convictions  of  a  baker  for  exer- 
cising  his  trade  on  one  and  the  same  day  ;  he  having  been  before  convicted 
for  exercising  his  ordinary  calling  on  that  identical  day.  If  the  act  of  pai- 
liament  gives  authority  to  levy  but  one  penalty,  there  is  an  end  of  the  ques- 
tion,  for  there  is  no  penalty  at  common  law.  On  the  construction  of  he 
act  ;f  parliament,  the  offence  is,  .^exercising  his  ordinary  trade  upon  he 
Lord's  day  ;"  and  that,  without  any  fractions  of  a  day,  hours,  or  minutes. 
It  is  but  one  entire  offence,  whether  longer  or  shorter  m  point  «  duration 
so,  whether  it  consjlt^f  one,  or  a  number  of  particular  acts.  1  he  penalty 
in  urred  by  this  offence  is  five  shiUings.  There  is  no  idea  conveyed  by 
he  t  itself,  that,  if  a  tailor  sews  on  the  Lord's  day,  every  stitch  he  take 
IS  a  separat;  offence;  or,  if  a  shoemaker  or  carpenter  work  for  different 
us'omcS  at  different  times  on  the  same  Sunday,  that  those  are  so  many 
s^:  rte  Ld  distinct  offences.     There  can  be  but  one  eU       ^  ne 

and  the  same  day:  and  this  is  a  much  stronger  case  than  that  whicn  Ms 
b  en  al  uded  to,  Jf  killing  more  hares  than  one  on  the  same  day  :  killing  a 
sin^lhare  is  ^n  offence  ;  but  the  killing  ten  more  an  the  same  day  will 
not  muSy  the  offence,  or  the  penalty  imposed  by  the  statute  for  killing 
one  H  re!  repeated  offences  are  not  the  object  which  the  legislature  had 
in  view  in  making  the  statute  ;  but  singly  to  punish  a  man  for  exercising 
h  s  orlary  trade  and  calling  on  a  Sunday.  Upon  this  construction,  the 
iutce  had  n  jurisdiction  whatever  in  respect  of  the  three  last  convictions, 
ilo  V  th  n  can  Ihere  be  a  doubt;  but  that  the  plaintiff  might  take  h.s  objec 
thn  a  he  uial  '  2dly.  With  regard  to  the  form  of  the  defence,  though  the 
tat  7  ac.  .  5,  enables  justices  of  peace  to  plead  the  genera  issue,  and 
^le  Ihe  spec'ial  m'atter  in  evidence  ;  iu  doing  so,  it  only  f  °-  f^^f?" 
That  in  evidence,  which  they  must  before  have  pleaded  and  therefore, 
hel  muJstill  justify.  But  what  could  the  justifications  have  been  in  this 
J  ffa  y  ha  been  attempted  to  be  set  up?  It  could  only  have  been  this  : 
th^t  because  the  plaintiff"  had  been  convicted  of  one  offence  on  hat  day, 
therefore  the  justice  had  convicted  him  *in  three_  other  offences  or 
the  same  act.  By  law  that  is  no  i^^^'^^'f'^''^,^'}'fT'^'^^^^^^^^  for 
face  of  it;  and  therefore,  as  was  very  rightly  admitted  Jy^^e  counsel  or 
the  defendant  in  the  argument,  if  put  upon  the  record  by  ^^ay  ol  plea, 


606 


SMITHS    LEADING    CASES. 


would  have  been  bad,  and  on  demurrer  must  have  been  so  adjudged.  ?vlost. 
clearly,  then,  it  was  open  to  the  plaintifl'  upon  the  general  issue,  to  take 
advantage  of  it  at  the  trial.  The  question  does  not  turn  upon  niceties  ; 
upon  a  computation  how  many  hours  distant  the  several  bakings  happened; 
or  upon  the  fact  of  which  conviction  was  prior  in  point  of  time  ;  or  that  for 
uncertainty  in  that  respect,  they  should  all  four  be  held  bad :  but  it  goes 
upon  the  ground,  that  the  offence  itself  can  be  committed  onl}'  once  in  the 
same  day.  We  are,  therefore,  all  clearly  of  opinion,  that  if  there  was  no 
jurisdiction  in  the  justice,  the  same  might  have  appeared  at  the  trial;  of 
course,  we  are  of  opinion  that  this  objection  might  have  been  made,  and 
that  the  objection  itself,  in  point  of  law,  is  well  founded. 

Per  Cur.     Postea  to  be  delivered  to  the  plaintiff. 


According  to  Griffith  v.  Harries,  2 
Mee.  &  \V.  335,  the  rule  is  the  same 
whether  the  conviction  appear  on  the 
face  of  it  to  be  for  an  oftence  not  within 
the  magistrate's  jurisdiction,  or  to  be  for 
an  offence  within  the  magistrate's  ju- 
risdiction, but  defective  for  want  of  the 
circumstances  necessary  to  a  convic- 
tion for  that  oifence ;  see  Lancaster  v. 
Greaves,  9  B.  &  C.  628;  Morgan  v. 
Hughes,  2  T,  R.  225 ;  Hardy  v.  Kyle,  9 

B.  &  C.  603;  Groome  V.  Forrester,  5  M. 
&  S.  320;  or  of  a  sufficiently  specific 
statement  of  them,  Newman  v.  Earl  of 
Hardwicke,  8  A.  &.  E.  127 ;  for,  as  was 
observed  in  Lancaster  v.  Greaves,  though 
the  conviction  is  conclusive  upon  matter 
of  fact,  and,  if  the  defendant  mean  to 
rely  on  matter  of  fact,  he  should  make 
his  defence  at  the  time,  the  rule  is  not 
so  as  to  matter  of  law.  JSo  if  the  con- 
viction of  two  persons  be  joint  for  offen- 
ces ex  necessitate  rei  several,  it  will  be 
void,  and  they  may  sue  in  trespass  if  it 
be  acted  upon.  Morgan  v.  Brown,  4  A. 
&  E.  515.  But,  "  a  conviction  by  a  ma- 
gistrate who  has  jurisdiction  over  the 
subject-matter  is,  if  no  defects  appear  on 
the  face  of  it,  conclusive  evidence  of 
the  facts  stated  in  it ;"  Brittain  v.  Kin- 
naird,  et  al.,  1  B.  &  B.  482;  per  Dallas, 
Chief  Justice.  In  that  case  trespass  was 
brought  against  justices  for  taking  a 
boat;  in  their  defence  they  relied  on  a 
conviction  which  warranted  them  in 
doing  so.  Tlie  plaintiff  oflered  evidence 
to  controvert  the  facts  stated  in  the  con- 
viction, but  it  was  held  not  to  be  admis- 
sible.   Accord.  Basten  v.  Carew,  3  B.  &. 

C.  649;  Fawcett  v.  Fowles,  7  B.  «Si  C. 


394;  Gray  v.  Cookson,  16  East,  13; 
Lowther  V.  Earl  Radnor,  8  East,  113; 
Ashcroft  V.  Bourne,  3  B.  &,  Ad.  684  ; 
and  the  same  attribute,  viz.,  that  of  be- 
ing conclusive  evidence  of  the  facts  sta- 
ted therein,  and  properly  tending  thereto, 
seems  to  have  been  thought  to  belong  to 
every  adjudication-  emanating  from  a 
competent  tribunal ;  Aldridge  v.  Haines, 
2  B.  &-  Ad.  395 :  and  the  cases  cited  by 
Coleridge  arguendo. 

Even  when  the  conviction  had  been 
quashed,  the  party  convicted,  in  an  ac- 
tion against  the  justices,  which  must  be 
on  the  case,  will  only  obtain  two  pence 
damages,  besides  the  amount  of  the  pen- 
alty if  levied,  and  no  costs  of  suit,  unless 
he  expressly  aver  malice  and  want  of 
probable  cause;  nor  will  he  recover  the 
amount  of  the  penalty  if  the  defendant 
prove  him  to  have  been  guilty  of  the 
offence  of  which  he  has  been  convicted, 
and  that  he  has  undergone  no  greater 
punishment  than  is  by  law  assigned 
thereto,  st.  43  G.  3,  c.  141.  r  ^gg-,  n 
*And    he   must   at    the    trial    '-  ^ 

prove  not  merely  his  own  innocence  of 
the  offence  of  which  he  was  convicted, 
but  also  what  took  place  before  the  jus- 
tice at  the  time  of  conviction,  in  order 
that  it  may  appear  whether  there  was 
probable  cause  or  no.  Burley  v.  Bethune, 
5  Taunt.  580. 

The  conviction  may  be  drawn  up  at 
any  time  before  it  is  returned  to  the 
quarter-sessions,  so  that,  though  it  may 
be  informal  at  first,  the  magistrate  has 
an  opportunity  of  amending  it;  and  it 
has  been  declared  to  be  not  only  legal 
but  laudable  so  to  do,  Rex  v.  Barker,  1 


CREPPS     V.     BURDEN. 


607 


East,  ISO.  But  the  rule  is  different  in 
case  of  an  order ;  Rex  v.  Justices  of 
Cheshire,  5  B.  &  Ad.  439. 

In  Griffith  v.  Harries,  2  Mee.  & 
Welsh.  33.5,  it  was  stated  by  Baron 
Parke,  that  in  a  case  of  Dimsdale  v. 
Clarke,  a.  d.  1829,  he  and  Mr.  J.  Lit- 
llt'dale  differed  from  Mr.  J.  Bayley  on 
the  question  whether  it  be  necessary 
that  the  magistrate's  jurisdiction  should 
appear  affirmatively  on  the  conviction, 
Mr.  J.  Bayley  thinking  that  it  need  not; 
but  see  Day  v.  King,  5  Ad.  &  Ell. 
3.59. 

As  the  law  regarding  summary  con- 
victions before  justices  is  of  great  and 
daily-increasing  importance,  on  account 
of  the  immense  variety  of  subjects 
which  fall  within  this  sort  of  jurisdiction, 
it  seems  advisable  to  add  a  few  general 
remarks  on  it  to  the  notes  which  were 
appended  to  this  case  in  the  former  edi- 
tion. 

A  conviction  before  a  justice  or  jus- 
tices of  the  peace  without  the  interven- 
tion of  a  jury  is  always  under  some  sta- 
tute ;  the  common  hxw  knows  of  no  such 
proceeding.  It  is  regarded  by  the  courts 
with  no  particular  favour,  and  it  is  ne- 
cessary that  the  justice  should,  on  the 
record  of  it,  show  that  he  has  proceeded 
recto  ordine:  for  there  are  certain  things 
which  every  conviction  must  contain, 
unless  some  act  of  parliament  have  ex- 
pressly dispensed  with  them. 

These  are:  1.  The  information, 
which  is  absolutely  essential  in  all  cases, 
excepting  where  the  justice  is  empower- 
ed to  convict  on  view  (see  1  Wm, 
Saund.  262,  note,  Jones  v.  Owen,  2  D. 
&  R.  600.)  The  information  need  not 
have  been  in  writing  or  even  on  oath, 
unless  expressly  directed  by  an  act  of 
parliament  to  be  so,  Basten  v.  Carew,  3 
B.  &L  C.  649.  Great  care  must,  how- 
ever, be  taken  in  framing  it,  for  it  is  the 
foundation  of  the  magistrate's  jurisdic- 
tion ;  nor  will  the  evidence  supply  omis- 
sions in  it,  for  the  office  of  the  evidence 
is  to  prove,  not  to  supply  a  legal  charge 
(Rex  V.  VVheatmain,  Dougl.  232  ;  Wiles 
V.  Cooper,  3  A.  &  E.  528.)  It  must 
state  the  day  on  which  it  is  exhibited; 
and  if  that  day  be  inconsistent  with,  or 
insufficient  to  warrant  the  conviction,  it 
will  vitiate.  Rex  v.  Kent,  2  Lord  Raym. 
1546.  It  must  state  the  place  of  exhi- 
biting, that  the  magistrate  may  appear 
to  have  been  acting  within  his  jurisdic- 
tion, Rex  v.  Kite,  1  B.  &  C.  101.  The 
name  of  the  informer  should,  it  seems, 


be   set    forth,    that  the  defendant  may 
know  who  is  accusing  him  (see,  how- 
ever, Paley,   80,  note) ;  in  some  cases, 
at  all  events,  it  is  necessary,  see  Rex  v. 
Stone,  2   Lord  Raym.   154.5.     It  must 
state  the  name  and  style  of  the  convict- 
ing justice  or  justices,  and  show  that  he 
is  acting  within  his  jurisdiction.     See 
Kite's  ca.se,  1  B.  &  C.  101.  Thus  it  will 
not  be  enough  to  state  that  he  is  a  jus- 
tice in  the  county,  without  stating  that 
he  is  of  or  for  the  county.  Rex  v.  Dob- 
byn,  Salk.  473  ;  the  name  of  the  offend- 
er or  offenders.  Rex  v.  Harrison,  8  T. 
R.  508  ;    the  time  of  the  offence,  so  that 
the  information  may  appear  to  have  been 
laid  in  due  time.  Rex  v.  Pullen,  Salk. 
369;  Rex  v.  Chandler,  Salk.  378;  Rex 
V.  Crisp,  7  East,  389  ;  the  place,  that  it 
may  appear   to   have   been  within  the 
justice's  jurisdiction.  Kite's  case,  1  B.  & 
C.  101,  et  notam.     Lastly,  the  charge 
must  be  set  forth  with  proper  and  suffi- 
cient certainty,  and  must  contain  every 
ingredient  necessary   to   constitute  the 
oltence,  leaving  nothing  to  mere  infer- 
ence or  intendment.     "A   conviction," 
to  use  the  words  of  Lord  Holt,  "must 
be  certain,  and  not  taken  by  collection." 
Rex  V.  Fuller,  1  Lord  Raym.  509;  Rex 
V.  Trelawney,  1  T.  R.  222.     Generally 
speaking,    it   is   sufficient  to  state  the 
offence  in  the  words  of  the  act  creating 
it ;  see    Rex   v.  Speed,   1   Lord  Raym. 
583;  Davis  v.  Nest,  2  C.  &  P.  167; 
Ex-parte  Pain,  5  B.  »&  C.  251.      Cases, 
however,  may  occur  in  which  the  words 
of  the  statute  are  so  general  as  to  ren- 
der some  more  certainty  in  the  convic- 
tion necessary  ;  per  Denison,  J.,  Rex  v. 
Jarvis,  1  Burr.  1-54  ;  Ex  parte  Hawkins, 
2  B.  »fc  C.  31 ;  Rex  v.  Perrott,  3  M.  & 
S.  379.     Exceptions  in  the  statute  cre- 
ating the  offence   should  be  negatived 
where  they  appear  in  the  clause  creating 
the  offence ;   Rex    v.    Clarke,  1    Cowp. 
35 ;  Rex  v.  Jukes,  8  T.  R.  542  ;  though 
it  is  otherwise  when  they  occur  by  way 
of  proviso  in  subsequent  clauses  or  sta- 
tutes ;  Cathcart  v.  Hardy,  2  M.   &  S. 
5.34 ;  Spieres  v.  Parker,   1  T.  R.  141  ; 
Rex  V.  Hall,  1  T.  R.  320.      In  analogy 
to  indictments,  it  appears  right  that  the 
information   should  conclude  contra  for- 
mam  statuti.    However,  there  are  many 
cases  where  technical  words,  that  would 
be   necessary  in   an  indictment  for  the 
same  offence,  are  unnecessary  in  a  con- 
viction ;  see  Rex  v.   Chandler,   1  Lord 
Raym.  581 ;    Rex  v.  Marsh,  2  B.  &  C. 
717. 


608 


SMITHS     LEADING     CASES. 


2.  It  must  appear  that  the  defendant 
was  simimoued  or  brought  iip  by  war- 
rant, for  it  would  be  contrary  to  natural 
justice  to  convict  without  giving  him  an 
opportunity  of  being  heard,  Painter  v. 
Liverpool  (Jas  Co.  8  Ad.  &  Ell.  33  ;  and 
the  summons  should  give  him  reasonable 
time,  Rex  v.  Mallinson,  2  Burr.  679; 
Rex  V.  Johnson,  1  Str.  231.  If,  indeed, 
he  appear  of  his  own  accord,  that  will 
dispense  with  a  summons.  Rex  v.  Stone, 
1  East,  649.  See  Rex  v.  Justices  of 
Wiltshire,  Mich.  1840,  B.  R.  If  a  sum- 
mons be  ineffectual,  a  warrant  may,  at 
least  in  some  cases,  be  issued ;  see  Bame 
V.  Methuen,  2  Bingh.  63;  but  then  the 
information  ought  to  have  been  upon 
oath  ;  see  Rex  v.  Payne,  Comberb.  359  ; 
per  Holt,  Barnard,  31 ;  and  it  is  the 
opinion  of  Mr.  Paley  that  a  warrant  (in 
the  absence  of  express  enactment)  lies 
only  when  the  offence  involves  some 
breach  of  peace,  Paley,  37. 

3.  The  appearance  or  non-appearance 
of  the  defendant  should  be  stated.  If, 
being  summoned,  he  do  not  appear,  he 
may  nevertheless  be  convicted,  for  other- 
wise any  defendant  might  escape  merely 
by  not  appearing,  Rex  v.  Simpson,  1  Str. 
44. 

4.  If  the  defendant  confess,  that  should 
be  stated,  and  there  is  then  no  necessity 
for  evidence.  Rex  v.  Hall,  1  T.  R.  320 ; 
Rex  v.  Clarke,  Cowp.  35 ;  even  though 
the  statute  direct  the  conviction  to  be 
"  on  the  oath  of  one  or  two  credible  wit- 
nesses :"  see  Rex  v.  Hall,  ubi  supra; 
Rex  v.  Gage,  Str.  546,  &.  1  Wm.  Saund. 
262  N.  1. 

5.  If  the  defendant  do  not  confess,  the 
evidence  must  be  set  forth.  It  should 
be  given  in  his  presence  ; .  but  if  the  evi- 
dence and  appearance  be  stated  as  on 
the  same  day,  that  will  be  presumed, 
Rex  V.  Swallow,  8  T.  R.  234.  There 
is  a  distinction  in  this  respect  between 
ordeis  and  convictions.  On  a  convic- 
tion the  evidence  must  be  set  out,  in 
order  that  the  superior  court  may  judge 
of  it,  Rex  V.  Vipont,  Burr.  1163  :  to 
state  that  tlie  offence  was  fully  and  duly 
proved  is  insufficient.  Rex  v.  Barker,  Str. 
316.  In  an  order  it  is  sufficient  to  state 
the  result  of  it ;  see  Rex  v.  Lovat,  7  T. 
R.  152  ;  Rex  v.  Justices  of  Cheshire,  5 
B.  &  Ad.  439 ;  Rex  v.  Green,  10  Mod. 
212 ;  Rex  v.  Marsh,  2  B.  &  C.  717.  It 
is  true  that  a  conviction  is  good  if  it 
profess  to  set  out  the  evidence,  although 
in  the  very  words  of  a  statute ;  but  if 
the  magistrate  so  framing  his  conviction 


alter  its  effect  and  state  it  as  proving 
more  than  it  really  did,  he  subjects  him- 
self to  a  criminal  information.  Rex  v. 
Pearse,  9  East,  35S  :  and  it  is  said  that 
in  a  case  of  Rex  v.  Allen,  cited  in  Paley 
on  Convictions,  the  magistrate  was 
advised  in  such  case  to  draw  up  a  fresh 
conviction  ;  see  D.  &  R.  490,  and  see 
Re  Rix,  4  D.  &  R.  352.  However,  it 
is  not  necessary  that  every  word  used 
by  the  witnesses  should  be  stated,  Rex 
V.  Warneford,  5  D.  &  R.  490.  As  the 
reason  for  setting  out  the  evidence  is 
that  the  superior  court  may  judge  of  it, 
it  follows  that,  if  the  evidence  do  not 
warrant  the  conviction,  the  latter  will  be 
bad.  Rex  v.  Ransley,  3  D.  &,  R.  572; 
Rex  V.  Smith,  8  T.  R.  5S8.  But  it  is 
not  necessary,  in  order  to  warrant  the 
conviction,  that  the  justices  should 
clearly  have  come  to  a  right  decision  in 
point  of  fact.  If  there  was  evidence 
from  which  any  reasonable  person  might 
have  drawn  the  same  inference  as  they 
did,  that  will  do.  Rex  v.  Glossop,  4  B. 
&  A.  616:  Anon.  1  B.  &  Ad.  332. 
Indeed,  the  magistrate  being  substituted 
for  a  jury,  his  decision  cannot  be  said 
to  be  wrong  if  the  evidence  was  such  as 
might  have  been  left  to  a  jury,  and  from 
which  they  might  have  drawn  the  same 
conclusion.  Rex  v.  Davis,  6  T.  R.  178. 

6.  There  must  be  a  judgment  and  an 
adjudication  of  the  proper  forfeiture ; 
Rex  V.  Harris,  7  T.  R.  238 ;  Rex  v. 
Salomons,  1  T.  R.  251  ;  Rex  v.  Hawkes, 
Str.  858.  There  is,  however,  no  parti- 
cular form  of  judgment,  Rex  v.  Thomp- 
son, 2  T.  R.  13.  And  the  adjudication 
may  be  good  in  part  though  it  exceed 
the  jurisdiction  of  the  justices,  provided 
the  excess  be  severable,  Rex  v.  Justices 
of  Wiltshire,  Mich.  1840,  B.  R. ;  Rex 
V.  St,  Nicholas,  3  A.  and  E.  79.  The 
application  of  the  penalty,  where  the  act 
directs  any  mode  of  applying  it,  is  a  ne- 
cessary part  of  the  judgment  It  is  suffi- 
cient m  most  cases  to  state  that  it  is  to 
be  distributed  or  paid  according  to  the 
form  of  the  statute,  in  such  case  made 
and  provided.  But,  when  the  statute 
leaves  the  application  discretionary,  the 
mode  in  which  the  discretion  was  exer- 
cised ought  to  be  stated.  Rex  v,  Demp- 
sey,  2  T.  R.  96.  Where  the  justice  is 
to  give  costs  or  charges,  he  must  ascer- 
tain their  amount  in  the  conviction, 
Rex  v.  Symons,  1  East,  189  ;  Rex  v.  St. 
Mary,  13  East,  57. 

Lastly,  the  conviction  must  be  sub- 
scribed, dated  and  sealed  ;  see  Rex  v .  El- 


CREPPS    V.    DURDEN. 


609 


well,  Str.  794  ;  Basten  v.  Carew,  ^B.  & 
C.  649.  The  reason  of  dating  it  is,  that 
it  may  appear  when  it  was  made  ;  and  if 
that  do  appear,  that  is  enough,  and  an 
impossible  date  might.be  rejected,  Rex 
V.  Picton,  2  East,  198 :  see  Rex  v.  Bel- 
lamy, 1  B.  &  C.  500.  ^ 

The  above  observations  apply  to  con- 
victions in  general ;  but  a  conviction  is 
the  creature  of  the  statute  law;  and,  if 
the  statute  prescribe  any  particular  form 
for  it,  no  matter  what,  that  form  must 
be  strictly  pursued,  Davison  v.  Gill,  1 
East,  72;  Gross  v.  Jackson,  3  Esp.  198. 

It  is  obvious  that,  as  so  much  preci- 
sion is  required  in  drawing  up  a  convic- 
tion, magistrates  and  their  clerks  must 
have  been  under  considerable  difficulty, 
and  must  have  run  considerable  risT^  m 
framing  it.  For  their  ease  and  protec- 
tion, statute  3  Geo.  4,  cap.  2.3,  has  pro- 
vided a  general  form,  in  which  sec.  1 
enacts  that  it  may  be  drawn  up  where 
no  particular  form  has  been  directed. 

If  a  conviction  be  void  oa  the  face  of 
it,  it  follows,  as  of  course,  that  no  act 
done  in  pursuance  of  it  can  be  justified, 
and  that  any  seizure  of  person  or  pro- 
perty under  it  will  form  the  subject- 
matter  of  an  action,  as  will  be  seen  in 
the  principal  case.  But  besides  this, 
there  are  two  modes  of  impeaching  it, 
first  by  appeal,  secondly  by  certiorari. 

An  appeal,  like  a  conviction,  is  the 
creature  of  the  statute  law,  and  never 
lies  unless  where  it  is  given  by  express 
terms,  Regina  v.  The  Recorder  of 
Ipswich,  8  Dowl.  103  ;  Rex  v.  Hanson, 
4  B.  &  A.  521.  The  rule  with  regard 
to  a  certiorari  is  the  very  canverse.  It 
always  lies  unless  expressly  taken  away. 
Rex  V.  Abbot,  Dougl.  .5.33 ;  and  it  re- 
quires very  strong  words  to  do  so;  for 
even  where  a  statute  gave  an  appeal  to 
the  sessions,  and  directed  that  it  should 
be  finally  determined  there,  and  no 
other  court  should  intermeddle  with  the 
causes  of  appeal,  it  was  held  that  a  cer- 
tiorari lay  after  the  appeal.  Rex  v. 
Moreley,  1  W.  Bl.  231  ;  Rex  v.  Jukes, 
8  T.  R.  542 :  see  Rex  v.  Justices  of 
West  Riding,  Yorkshire,  1  A.  &  E.  575  ; 
where  it  was  taken  away.  Rex  v.  Fell, 
1  B.  «&.  Ad.  380.  The  reason  of  this  is, 
that  it  is  an  extremely  beneficial  writ, 
being  the  medium  through  which  the 
Court  of  Queen's  Bench  exercises  its 
corrective  jurisdiction  over  the  summary 
proceedings  of  inferior  courts.  Even 
where  it  is  taken  away  in  express  terms, 
they  do  not  include  the  crown  unless 

Vol.  I.— 39 


named,  Rex  v.  Davies,  5  T.  R.  626  ; 
Rex  v.  Allen,  15  East,  3.33;  Rex  v. 
Boulbec,  4  A.  &  E.  498.  Nay  it  is  said 
that  the  attorney-general,  on  behalf  of 
the  crown,  might  in  such  case  obtain  the 
writ  for  a  defendant;  see  1  East,  303. 
note,  and  the  authorities  there  cited. 

A  certiorari  is  a  writ,  issuing  out  of 
the  Court  of  Chancery  or  the  Court  of 
Queen's  Bench,  commanding  the  judges 
or  officers  of  an  inferior  court  to  certify 
and  return  the  record  of  a  matter  before 
them.  It  is  used  for  a  great  variety  of 
purposes  ;  but  we  are  at  present  looking 
only  at  its  applicabilty  to  the  case  of  a 
conviction,  No  writ  of  error  lies  upon 
a  conviction  ;  so  that  a  certiorari  is  thd 
only  mode  of  bringing  it  into  the  Queen's 
Bench  in  order  to  reverse  it.  It  is  not, 
however,  like  a  writ  of  error,  granted  ex 
debitojustitiae;  but"  application  is  made 
to  the  sound  discretion  of  the  court," 
Rex  V.  Bass,  5  T.  R.  252  ;  Rex  v.  Man- 
chester and  Leeds  Railway  Co.,  1  P.  & 
D.  164  ;  Rex  v.  South  Holland  Drainage 
Committee-men,  1  P.  »&  D.  79.  This 
application  is  by  way  of  motion,  and  by 
13  Geo.  2,  c.  18,  sec.  5,  "  no  certiorari 
shall  be  granted  to  remove  any  order, 
conviction,  or  other  proceeding,  before  a 
■  justice  or  at  the  sessions,  unless  it  be 
applied  for  in  six  calendar  months,  and 
upon  oath  made  that  the  party  has  given 
six  days'  notice  in  writing  to  the  justice 
or  justices,  or  two  of  them,  if  so  many 
there  be :"  see  Rex  v.  Boughcy,  4  T.  K. 
281  ;  Rex  v.  Bloxham,  1  A.  &  E.  386. 
The  notice  to  the  justices  must  be  six 
days  before  the  rule  nisi  is  moved  for, 
one  day  inclusive,  the  other  exclusive. 
Rex  v.  Goodenough,  2  A.  &  E.  463: 
Rex  V.  Flounders,^4  B.  &  Ad.  865.  It 
must  be  by  or  on  behalf  of  the  party 
intending  to  move,  and  must  appear  to 
be  so,  Rex  v.  Justices  of  Lancashire,  4 
B.  &.  A.  289 ;  Rex  v.  Justices  of  Cam- 
bridgeshire, 3  B.  &  Ad.  887;  Rex  v. 
Justices  of  Kent,  3  B.  &  Ad.  250 ;  Rex 
V.  Justices  of  Lancashire,  3  Perr.  &-  T, 
86 ;  Rex  v.  Justices  of  Shrewsbury, 
Mich.  1840,  B.  R. ;  Rex  v.  How,  11  Ad. 
&  Ell.  1,59.  But  the  crown  seems  not 
to  be  bound  by  this  even  where  it  es- 
pouses the  defendant's  side.  Rex  v. 
James,!  East,  303,  note ;  Rex  v.  Berke- 
ley, 1  Keny.  80  ;  Rex  v.  Battams,  1  East, 
298.  If,  upon  the  discussion  of  the  rule, 
the  rule  be  granted,  it  removes  the  con- 
viction into  the  court  above,  where  it  is 
quashed  if  bad  ;  if  good,  it  remains  in 
the   Queen's  Bench,  unless,  indeed,  to 


610 


SMITHS     LEADING     CASES. 


keep  it  there  would  occasion  a  defect  of 
justice,  in  which  case  it  may  be  sent 
back  again  by  writ  of  procedendo,  Rex 
V.  NevUle,  2  B.  &  Adol.  299. 

The  Court  of  Queen's  Bench,  exer- 
cising its  appellate  power  over  a  con- 
viction removed  into  it  by  certiorari,  will 
not  allow  the  merits  of  the  case  to  be 
again  litigated  upon  affidavit;  for  the 
justices  are  the  proper  persons  to  deter- 
mine upon  those.  But  a  question  has 
occasionally  arisen  whether,  in  cases 
where  the  justices  have  proceeded  with- 
out jurisdiction,  and  have  nevertheless 
stated  upon  the  face  of  the  conviction 
facts  showing  a  jurisdiction,  it  be  com- 
petent to  the  defendant  to  prove  the 
want  of  jurisdiction  by  affidavit.  It  cer- 
tainly appears  desirable  that  the  court 
should  have  power  to  ascertain  the  ques- 
tion of  jurisdiction.  Some  cases  might 
easily  be  suggested,  in  which  not  only 
great  private  but  great  public  inconveni- 
ence might  arise  from  leaving  an  invalid 
order  or  conviction  unreversed,  and  great 
injustice  might  be  caused  by  allowing 
justices  out  of  or  in  sessions,  by  making 
their  order  or  conviction  good  upon  the 
face  of  it,  to  give  themselves  a  jurisdic- 
tion over  matters  not  entrusted  to  them 
by  the  law.  Whether  a  mandamus 
would  lie  in  such  a  case  to  oblige  them 
to  make  a  correct  statement,  is  a  ques- 
tion which  the  Court  of  Queen's  Bench 
would,  at  least  in  the  majority  of  in- 
stances, proba,bly  answer  in  the  nega- 
tive ;  for  though  it  is  true  that  in  some 
cases,  where  there  has  been  a  clear 
omission  of  some  material  ingredient  in 
a  conviction,  the  court  has  by  mandamus 
ordered  it  to  be  supplied  ;  as  in  Re  Rix, 
4  D.  &  R.  352 ;  Rex  v.  Marsh,  4  D.  iS^ 
R.  260 ;  Rex  v.  Warneford,  5  D.  &  R. 
489 ;  Rex  v.  Allen,  5  D.  &  R.  490  ;  yet 
this  has  been  done  after  the  order  or 
conviction  had  been  returned  upon  a 
certiorari;  and  it  either  clearly  appear- 
ed, or  was  shown  by  affidavit,  to  the 
court,  that  the  whole  or  some  material 
portions  of  the  evidence  had  been  omit- 
ted ;  (see  the  observations  of  the  court 
on  these  cases  in  Rex  v.  Wilson,  1  Ad. 
&.  Ell.  627 ;)  and  the  mandamus  went 
not  to  compel  the  court  below  to  insert 
a  particular  thingt,  or  raise  a  particular 
question,  upon  their  return,  but  merely 
to  oblige  them  to  set  out  an  integral  part 
of  the  case,  which  must  have  existed  and 
had  been  omitted.  I  say  must  have 
existed,  because  in  Rex  v.  Wilson, 
where  evidence  might  or  might  not  have 


been  acted  on,  the  court  would  not  send 
the  mandamus.  And  there  are  cases  in 
which  the  court  has  refused  to  interfere 
by  mandamus  to  compel  the  courts 
below  to  raise  a  particular  question : 
for  instance,  in  Rex  v.  Hewes,  3  A.  and 
E.  725,  the  jury  had  returned  a  verdict, 
guilty  by  mischance :  the  chairman  of 
the  sessions  told  them  they  must  find  a 
general  verdict ;  and  they  then  found 
a  verdict  of  guilty,  and  recommended 
to  mercy  on  the  ground  that  the  act  was 
not  done  with  a  malicious  intent.  The 
motion  was  for  a  mandamus  to  set  the 
clerk  of  the  peace's  minute  right  accord- 
ing to  the  facts,  in  order  that  a  writ  of' 
error  might  be  sued  out.  The  rule  was  ' 
discharged.  Mr.  J.  Patteson  said,  "  The 
case  of  a  mandamus  to  enter  continu- 
ances and  hear  is  not  like  this.  There 
the  justices. are  ordered  merely  to  hear 
an  appeal,  and  to  enter  continuances 
because  those  are  necessary  in  order  to 
enable  them  to  hear ;  so,  in  the  present 
case,  if  it  were  necessary  for  the  defen- 
dant to  have  a  record  made  up,  and  the 
officer  refused  to  do  it,  the  party  having 
a  right  to  avail  himself  of  tlie  record 
might  apply  for  a  mandamus,  as  in  Rex 
V.  Justices  of  Middlesex,  5  B.  &  Ad. 
1113..  I  have  always  understood  that 
this  court  might  send  a  mandamus  to  an 
inferior  court  to  do  its  duty  in  general 
terms,  but  not  to  do  a  particular  thing, 
as  to  make  an  alteration  here  or  there  in 
the  clerk  of  the  peace's  minutes." 

Supposing  that  the  court  below  can- 
not be  compelled  by  mandamus  to  show 
the  defect  of  jurisdiction  upon  the  re- 
cord, the  next  question  is,  will  the  court 
above  allow  evidence  of  such  defect  of 
jurisdiction  to  be  laid  before  it  by  way 
of  affidavit,  on  the  record  being  brought 
before  it  by  a  writ  of  certiorari  1  In 
Rex  V.  St.  James's,  Westminster,  2  A.  & 
E.  241,  it  was  remarked  by  Mr;  J.  Taun- 
ton (a  judge  whose  obiter  dicta  are 
always  worthy  of  the  greatest  attention,) 
that  this  had  been  constantly  done.  In 
Rex  v.  Inhabitants  of  Great  Marlow,  2 
East,  244,  an  appointment  of  oversseers, 
good  on  the  face  it,  was  allowed  to  be 
questioned  by  affidavit  on  the  ground  of 
a  defect  of  jurisdiction,  and  was  finally 
quashed.  The  court  in  that  case  had 
taken  time  to  consider  as  to  the  practice, 
with  regard  to  receiving  the  affidavit ; 
and  Mr.  J.  Lawrence  mentioned  several 
similar  cases  in  which  that  course  had 
been  pursued.  A  similar  course  seems 
to  have  been  pursued  with  an  order  of 


C  REP  PS    V.     DURDKN. 


611 


the  quarter  sessions  in  Rex  v.  Justices 
of  the  West  Riding  of  Yorkshire,  5  T. 
R.  629.  In  tiie  late  case  of  Rex  v.  Jus- 
tices ofCliosliire,  1  Perr.  &  Da  v.  93.  8 
A.  and  E.  4(K),  tlie  question  was  a  good 
deal  discLissed  ;  and  it  seenrjs  to  have 
been  adrnitted  that  affidavits  might  be 
looked  at  for  the  pupose  of  showing  a 
defect  of  jurisdiction.  "It  cannot  be 
disputed,"  says  Mr.  J.  Coleridge-  in  that 
case,  "  that  there  are  many  cases  in 
which  affidavits  may  be  looked  at  in 
order  to  ascertain  whether  there  was 
jurisdiction  or  not ;  for  suppose  an  order 
made,  which  was  good  on  the  face  of  it, 
"but  which  was  not  made  by  a  magis- 
trate, it  is  clear  that  this  fact  may  be 
sliown  to  the  court."  Accord.  Rex  v. 
Sheffield' and  Manchester  Railway  Co., 
Mich.  1839,  B.  R. , 

Assuming  this  to  be  so,  every  case, 
or  almost  every  case,  of  a  defect  of  juris- 
diction in  the  convicting  magistrate  or 
magistrates  would  be  reviewable  by 
certiorari ;  for  though  it  is  now  usual 
for  the  statute  creating  the  offence  to 
contain  a  clause  taking  away  the  certip- 
rari,  yet  such  clauses  do  not,  generally 
speaking,  appjy  to  cases  where  there 
was  no  jurisdiction  to  convict,  such  cases 
not  falling  withm  the  act  of  parliament 
at  all.  Rex  v.  Justices  of  Somersetshire, 
5  B.  &  C.  816  ;  Rex  v.  Justices  of  the 
West  Riding  of  Yorkshire,  5  T.  R.  629; 
Rex  v.  Inhabitants  of  Great  Marlow,  2 
East,  244.  But  there  is  a  distinction 
between  cases  of  a.,  leant  of  jurisdiction 
and  an  irregularity  in  exfrcising  it :  in 
the  former  case  the  certiorari  lies  not- 
withstanding the  private  clause,  in  the 
latter  it  is  taken  away.  Rex  v.  Bristol 
and  Exeter  Railway  Co.,  1  P.  &  D.  170, 
note  ;■  Rex  v.  Sheffield  and  Manchester 
Railway  Co.,  Mich.  1839,  B.  R. 

•  However,  where  the  justice  or  jus- 
tices had  jurisdiction,  the  court  will  not 
grant  a  certiorari  to  remove  the  convic- 
tion, or  order,  upon  a  suggestion  made 
by  atHdavit  that  they  have  exercised  the 
jurisdiction  wrongly ;  Rex  v.  Justices  of 
of  Cheshire,  1  Perr.  &,  Dav.  88,  8  A.  &. 
E/  400  ;  Rex  v.  St.  James's,  Westmin- 
ster, 2  B.  &.  Ad.  241 ;  for  that  would  be 
to  substitute  the  court  above  for  the  tri- 
bunal to  which  the  statute  has  commit- 
ted the  inquiry.  And  though  it  has  been 
endeavoured  to  show  that  the  Queen's 
Bench  has  a  right  in  cases  of  defect  of 
jurisdiction  to  entertain  the  objection 
founded  upon  such  defect  on  affidavit, 
yet  it  must  be  observed  that  the  court 


is  not  bound  to  do  so  upon  certiorari, 
for  a  certiorari,  as  has  been  already 
pointed  out,  is  a  writ  not  of  right,  but  in 
the  discretion  of  the  court  to  grant  or.  to 
refuse.  And  cases  may  occur  in  which, 
though  there  may  have  been  a  defect  of 
jurisdiction,  still  the  court  may  conceive 
that  the  interests  of  justice  would  be 
rather  impeded  than  advanced  by  any 
summary  interference  on  their  part.  In 
Rex  V.  Justices  of  Cambridgeshire,  4  B- 
&.  Adol.  122,  Mr.  J.  Patteson  said, 
"  With  regard  to  the  objections  in  point 
of  jurisdiction,  I  protest  against  its  being 
understood  that  we  can-  on  every  occa- 
sion look  into  extrinsic  rriatter  on  motions 
to  bring  up  orders  by  certiorari."  "  We' 
noust  be  cautiouSjV  said  Mr.  J. -Coleridge,- 
"  not  to  exceed  our  jurisdiction ;  and 
when  we  find,  there  is  a  court  of  appeal 
below,  to  which  the  matter  brought 
before  us  on  affidavit  might  have  been 
carried,  I  think  we  are  confined  to  ob- 
jections appearing  on  the  face  of  the 
order."  I  do  not  understand  these  ob^ 
servations  of  the  learned  judges  as  im- 
porting that  there  are  cases  of  a  total 
defect  of  jurisdiction  which  the  Court  of 
Queen's  Bench  has  no  povyer  to  enter- 
tain on  affidavit,  but  that  .the  leaningof 
tiie  court  is  against  doing-  so,  except 
where  public  justice  would  be  thereby 
furthered.  See  Rex  v.  Justices  of  Den- 
bighshire, 1  B.  &.  Adol.  616.  See  Rex 
V.  South  Holland  Drainage  Committee- 
men, 1  P.  &  D.  79;  Rex  v.  Manchester 
and  Leeds  Railway  Co.,  1  P.  &  D.  164. 
And  that  its  disinclination  to  interfere  is 
strong,  and  uniform  in  cases  where  the 
legislature  has  provided  another  compe- 
tent court  of  appeal  to  which  the  ques- 
tion might  be  carried. 

In  Rex  v.  Justices  of  Cambridgeshire, 
Lord  Denman,  in  his  judgment,  sug- 
gested another  ground  on  which  an  ap- 
plication upon  affidavit  might  possibly 
be  entertained.  "  I  do  not  say,"  said  his 
lordship,  "that  even  o?i  certiorari  the 
court  would  not  set  aside  an-  order  if 
manifest  fraud  were  shown.  Tliatmay 
be  so.  In  Rex  v.  The  Justices  of  Som- 
ersetshire, where  a  certiorari  was  ap- 
plied for  to  remove  an  appointment  of 
overseers,  on  a  suggestion  of  corrupt  mo- 
tives in  the  appointing  magistrates,  the 
court  refused  a  rule,  saying  that  the  par- 
ties complaining  might  appeal  to  the  ses- 
sions, or  move  for  a  criminal  information. 
Notwithstanding  that  refusal,  however, 
I  do  not  say  that  if  corruption  were 
clearly  made  out,  the  court  would  not, 


613  smith's   leading   cases. 

upon  an  application  like  this,  declare  the  lordship  observed  that  "  fraud  is  an  ex- 
order  invalidated  by  the  fraud."  This  trinsic  collateral  act  which  vitiates  the 
observation  of  his  lordship  is  consistent  most  solemn  proceedings  of  courts  of 
with  the  principle  laid  down  by  C.  J,  justice."  Lord  Coke  says,  "  it  avoids 
De  Grey  in  the  Duchess  of  Kingston's  all.  judicial  acts,  ecclesiastical  or  tem- 
case,   post,  volume  2,  431,  where   his  poral." 


The  general  principle  of  English  jurisprudence,  that  courts  of  inferior 
jurisdiction,  not  proceeding  according  to  the  course  of  the  common  law, 
must  set  out  on  the  face  of  their  proceedings,  all  tTie  material  facts  neces- 
sary to  enable  their  jurisdiction  to  attach,  is  of  course  recognised  in  gene- 
ral terms,  in  the  United  States.  1  Peters,  C.  C.  R.  36;  1  Caine,  594; 
Kemper  v.  Kennedy,  5  Oranch,  185  ;  Clapper  v.  Beardsley,  1  Aiken's  Vt. 
Reports.  There  do  not  seem,  however,  to  be  many  cases  in  which  it 
applies  in  .practice,  in  this  country,  since  the  subordinate  tribunals  have 
been  most  generally  regarded  as  possessing  a  jurisdiction  limited,  but  not 
inferior.  There  does  not  appear,  for  instance,  in  Pennsylvania,  to  be  any 
court,  which  comes  under  the  operation  of  the  rule  ;  2  Binney,  255  ;  4  Bin- 
ney,  177;  although  it  may  apply  to  convictions,  and  perhaps  to  purely 
civil  proceedings  before  magistrates  and  justices  of  the  peace.  Mayor  v. 
Mason,  4  Dallas,  266;  Commonwealth  v.  Willow  Grove  Turnpike  Com- 
pany, 2  Binney,  257.  Indeed,  it  would  seem,  that  in  most  of  the  states, 
where  proceedings  take  place,  not  in  courts  of  record,  but  before  one  or 
more  individuals  acting  by  virtue  of  a  commission,  the  English  rule  is 
applied  in  full  force.  Walker  v.  Turner,  9  Wheaton,  549  ;  Hall  v.  Howe), 
10  Conn.  R.  526;  8  Con.  R.  480;  Brooks  v.  Adams,  11  Pick.  441.  It 
has  also  been  applied  in  a  series  of  decisions  made  with  regard  to  the  pro- 
ceedings of  various  inferior  tribunals  in  the  state  of  New  York,  Frary  v. 
Dakin,  7  Johnson,  75;  Morgan  v.  Dyer,  10  Id.  161 ;  Wyman  v.  Mitchell, 
1  Cowen,  316;  Bowman  v.  Russ,  6  Id.  234. 

In  the  case  last  cited  the  defendant  pleaded  to  a  suit  of  trespass  quare 
clausum  fregit,  a  justification  under  a  judgment  and  warrant  against  the 
plaintiff,  on  a  proceeding  before  justices  of  the  peace,  for  deserting  his  wife 
and  children,  and  leaving  them  without  sufficient  means  of  support ;  but  the 
plea  did  not  aver  the  fact  of  such  desertion,  and  the  plaintiff  replied  deny- 
ing that  it  had  taken  plade.  Upon  demurrer  by  the  defendant,  judgment  was 
given  against  him,  and  it  was  held  that  apart  from  the  replication  the  pleas 
were  clearly  bad,  as  not  containing  an  averment  of  the  desertion,  which  was 
necessary  to  give  jurisdiction  to  the  tribunal  the  authority  of  which  was  set 
up  as  a  defence.  Ih  Mills  v.  Martin,  19  Johnson,  34,  a  similar  point  arose  on 
an  avowry  under  the  authority  of  a  court  martial,  to  an  action  of  replevin 
for  taking  the  plaintiff's  oxen;  and  it  was  Keld  that  the  avowry  was  demur- 
able  for  not  setting  forth  on  the  record  sufficient  matter  to  shew  that  the 
jurisdiction  of  the  court  martial,  which  Avas  necessarily  a  tribunal  of  limited 
and  inferior  powers,  had  attached  for  the  purpose  of  authorizing  the  judg- 
ment, .set  up  in  the  avowry,  as  a  justification  of  the  act  complained  of  by 
plaintiff.  In  each  of  these  cases  the  judgment  of  the  inferior  court  was 
held  open  to  be  impeached  collaterally,  and  to  be  incapable  of  being  sus- 


CREPPS    V.     DURDEN.  613 

tained,  as  would  that  of  a  court  of  record  under  similar  circumstances,  by  its 
own  authority,  unless  supported  by  averments  of  the  facts  essential  to  its 
validity  in  the  first  instance.  Of  course  in  both  instances  had  the  necessary 
facts  been  averred  in  the  plea  and  traversed  by  the  replication,  the  issue 
would  have  been  fully  sustained  on  the  part  of  the  defendant  by  a  certified 
copy  of  the  proceedings  below,  if  sufficient  matter  appeared  on  its  face 
as  the  ground  of  the  determination  against  the  plaintiff. 

The  same  course  of  xlecision  was  followed  in  the  recent  case  of  Stephens 
v.  Ely,  6  Hill,  607,  where  it  was  held  that  a  plea  of  discharge  as  a  bank- 
rupt under  the  act  of  Congress,  of  August,  1841,  was  not  sufficient  where 
it  merely  set  forth  that  the  defendant  was  declared  a  bankrupt  by  the  Dis- 
trict Court  of  the  U.  S.  under  that  act,  and  that  it  was  thereupon  decreed  by 
the  court,  that  he  should  be  discharged  as  such  from  his  debts.     The  court 
were  of  opinion  that  although  it  was  not  necessary  to  recite  the  particular 
acts  of  bankruptcy,  on  which  the  creditors  had  proceeded,  yet  that  the  plea 
should  have  averred,  that  the  defendant  was  a  bankrupt  in  point  of  fact, 
and  then  have  set  forth  enough  of  the  proceedings  to  give  the  District 
Court  jurisdiction,  and  so  have  concluded  to  the  discharge.     And  in  the  pre- 
vious case  of  Van  Etten  V.  Hurst,  6  Hill,  311,  it  wis  decided  that  although  in 
general  process  regularly  issued',  even  from  an  inferior  court,  Will  in  itself 
be  sufficient  to  justify  an  officer  who  has  acted  under  it,  yet  that  where  it  is 
necessary  to  go  behind  the  writ,  and  show  a  "judgment,  as  in  the  case  of  a 
levy  on  property  which  the  defendant  in  the  execution  has  conveyed  by  a 
sale  fraudulent  as  against  creditors,  the  rule  that  jurisdiction  must  be  shown 
will  apply,  and  all  the  facts  necessary  for  that  purpose  must  be  fully  set  out 
on  the  record.     In  Baird  v.  Campbell,  4  Watts  &  Sergeant,  191,  the  Su- 
preme Court  of  Pennsylvania  decided,  in  accordance  with  general  principles, 
that  where  tbe  facts  and  proceedings  set  forth  on  the  docket  of  a  justice  of 
the  peace,  were  regular,  and  sufficient  to  warrant  a  judgment,  they  could 
not  be  proved  false,  or  impeached  in  any  collateral  proceeding.     This  deci- 
sion of  course,  does  not  affect  the  right  of  impeaching  such  judgments  col- 
laterally, where  the  proceedings,  as  set  forth,- are  not  regular  and  sufficient. 
From  the  general  English  rule,  that  the  'facts  necessary  to  give  jurisdic- 
tion to  an  inferior  tribunal,  must  be  set  forth  on  the  face  of  its  proceedings, 
are  deduced  a  variety  of  important  consequences.     As  the  omission  of  these 
facts  renders  the  proceedings  void  for  want  of  jurisdiction,  it  follows,  that  in 
case  of  such  omission,  they  may  be  declared  so,  not  merely  on  a  direct  pro- 
ceeding by  certiorari,   but  collaterally,  by  any   competent  tribunal  before 
whom  the  subject-matter  decided  by  the  inferior  court  may  afterwards  be 
brought.     It  would  therefore  appear,  that  no  court  can  be  treated  aS>  a  court 
of  inferior  jurisdiction,  in  the  English  sense  of  the  term,  unless  its  judg- 
ments are  liable  to  be  treated  as  nullities  by  other  tribunals,  acting  collate- 
rally, not  merely  where  an  actual  want  of  jurisdiction  exists,  but  where  the 
facts  necessary  to  give  jurisdiction  are  not  apparent  upon  the  record.     Not 
only  must  there  be  a  liability  to  a  collateral  reversal,  but  that  liability  must 
accrue,  either  on  manifest  error,  or  on  failure  of  proper  averment.     This 
doctrine  will  be  found  fully  sanctioned  and  applied  in  the  cases  of  Mills  v. 
Martin  and  Bowman  v.  Russ  above  cited. 

Neither  of  these  characteristics  mark  the  judgments  of  the  Circuit  Courts 
of  the  United  States.     They  are  courts  of  limited,  but  not  of  inferior  juris- 


614  smith's  leading   cases. 

diction.'  Wood  v.  Mann, -1  Sumner,  580;  M'Cormick  v.  Sullivant,  tO 
Wheatort,  l&Q.  Thus,  their  judgmeH^ts  cannot  be  reversed,  collaterally,  by 
the- courts  of  the  different  states  of  the  Union.  Griswold  v.  Sedgwick,  1 
Wendell,-  131  ;  Baldwin  v.  Hale,  17  Johnson,  272.  They  are,  of.  course, 
equally  binding,,  unless  regularly  overthrown  on  -appeal  or  writ  of  error  in 
the  other  courts  of  the  United  States,  aiid  cannot  be  treated  as  nullities  in 
those  courts,  for  a  failure,  to  set  out  the  facts  giving  jurisdiction.  M'Cor- 
mick V.  Sullivant,  10  Wheaton,  199.  It  would  even  seem  that  when 
brought  directly  before-  the  Supreme  Court  of  the  United  States,  on  error, 
the  judgments  of  the  Circuit  Courts  will  be  valid,  if  the  jurisdiction 
really  attached,  although  not  stated  in  the  proceedings.  Skillen  v.  May,  6 
Cranch,  207. 

In  Pennsylvania,  one  of  the  characteristics  attached  to  judgments  of 
courts  of  inferior  jurisdiction,  by  virtue  of  which  they  may  he  impeached 
collaterally  would  seem  to  have  applied  to  the  decrees  of  the  Orphans' 
Court  of  that  state,  before  if  not  since  the  passage  of  an  act  of  assembly,  in 
-  1832,  by  which  it  was  declared  a  court  of  record  ;  Messenger  v.  Kintzer,  2 
Binney,  97;  Snyder  v.  Snyder,  6  Binncy,  497  ;  but  the  other  and  more 
important  characteristic,  which  .  is,  that  no  jurisdiction  will  be  presumed, 
unless  made  to  appeair,  was  so,  far  from  attaching  to  proceedings  in  those 
courts,  that  it  was  held,  that  every' presumption  was  to  be  made  the  other 
way,  and  that  such  proceedings  would  not  be  reversed,  unless  for  fraud  or 
defects  plainly  appearing  on  the  face  of  the  record.  M'Pherson  v.  Cunliff, 
4  Sergeant  &  Rawle,.  432;  Franks  v.  Groff,  14  Sergeant  &  Rawle,  184.  ^ 
In  like  manner,  the  decrees  of  the  "Court. of  Probate,  in  Massachusetts, 
appear  to  be  held  liable  to  a  collateral  reVeTsal,  while  at  the  same  time  the 
law  would  seem  to  lean  rather  on  the'side  of  pres^uming  in  favour,  than 
against  its  jurisdiction  when  insufficiently  set  forth. 

It  would  seem,  however,  that  in-  Vermont,  the  Court  of  Probate  is  held 
liable  to  the  force  of  the  English  rule,  and  that  its  orders  will  be  treated  as 
nullities  in  collateral  proceedings,  whenever  it  does  not  appear  either  frona 
the  order  itself,  or  from  the  record  of  the  court,  that  such  faqts  exist  as 
warrant  the  order.  Clapp  y.  Beardsley,  1  Aiken"'s  Vtr  Reports,  174; 
Hendrick  v.  Cleveland,  2  Vermont  Reports,  .337;  Waldridge  v.  Hall,  3 
id.  129.  .  . 

In  the  case  of  Powers  v.  The  People,  4  Johnson,  292,  the  proceedings  of 
the  Quarter  Sessions  for  one  of  the  counties  of  New  York,  were,  quashed 
on  certiorari,  for  not  setting  forth  sufficient.matter  to  make  it  appear  that  the 
jurisdiction  of  the  court  had  been  pursued.  This  decision,  of  course,  does 
not  show  that  the  Quarter  Sessions  were  considered  as  a  court  of  inferior 
jurisdiction,  since  it  was  given,  not  on  a  collateral  examination  of  the  case, 
but  on  a  regular  reversal  of  the  record  to  a  superior  court,  by  the  proper 
writ,  H. 


LICKBARROW     V.     MASON.  615 


*LICKBARROW  V.  MASON.  [*398] 


IN  B.  R.  CAM.  SCACC.  ET  DOM.  PROC. 
[reported  2  T.  R.  63 ;  1  ii.  bl.  357,  and  6  east,  21.] 

The  vendee  of  goods  may,  by  assignment   of  the  bills  of  lading  to  a  bona  fide   trans- 
feree, defeat  the    vendor's  right  to  stop    them   in  transitu,  in  case  of  the  vendee'a 
1      insolvency. 

The  consignor  may  stop  goods  in  transitu  before  they  get  into  the  hands  of  the 
consignee,  in  case  of  the  insolvency  of  the  consignee :  but,  if  the  consignee  assign  the 
bills  of  Jading  to  a  third  person  for  a  valuable  consideration,  the  right  of  the  consignor, 
as  against  such  assignee,  is  divested.  There  is  no  distinction  between  a  bill  of  lading 
indorsed  in  blank,  and  an  indorsement  to  a  particular  person. 

Trover  for  a  cargo  of  corn.  Plea,  the  general  issue.  The  plaintiffs,  at 
the  trial  before  Buller,  J.,  at  the  Guildhall  sittings  after  last  Easter  term, 
gave  in  evidence  that  Turing  and  Son,  merchants  at  Middleburg,  in  the 
province  of  Zealand,  on  the  22nd  of  July,  1786,  shipped  the  goods  in 
question  on  board  the  Endeavour  for  Liverpool,  by  the  order  and  directions 
and  on  the  account  of  Freeman  of  Rotterdam.  That  Holmes,  as  master  of 
the  ship,  signed  four  several  bills  of  lading  for  the  goods  in  the  usual  form 
unto  order  or  assigns  :  two  of  which  were  indorsed  by  Turing  and  Son  ia 
blank,  and  sent,  on  the  22nd  July,  1786,  by  them  to  Freeman,  together  with 
an  invoice  of  the  goods,  who  afterwards  received  them  ;  another  of  the  bills 
of  lading  was  retained  by  Turing  and  Son;  and  the  remaining  one  was 
kept  by  Holmes.  On  the  25th  of  July,  1786,  Turing  and  Son  drew  four 
several  bills  of  exchange  upon  Freeman,  amounting  in  the  whole  to  477/. 
in  respect  of  the  price  of  the  goods,  which  were  afterwards  accepted  by 
Freeman.  *0n  the  25th  of  July,  1786,  Freeman  sent  to  the  plain-  r^qonT 
tiffs  the  two  bills  of  lading,  together  with  the  invoice  which  he  had  L  J 
received  from  Turing  and  Son,  in  the  same  state  in  which  he  received  them, 
in  order  that  the  goods  might  be  taken  poseession  of,  and  sold  by  them  on 
Freeman's  account ;  and  on  the  same  day  Freeman  drew  three  sets  of  bills 
of  exchange  to  the  amount  of  5201.  on  the  plaintiff^,  who  accepted  them, 
and  have  since  duly  paid  them.  The  plaintiffs  are  creditors  of  Freeman  to 
the  amount  of  542/.  On  the  15th  of  August,  1786,  and  before  the  four  bills 
of  exchange  drawn  by  Turing  and  Son  on  Freeman  became  due,  Freeman 
became  a  bankrupt ;  those  bills  were  regularly  protested,  and  Turing  and 
Son  have  since  been  obliged,  as  drawers,  to  take  them  up  and  pay  them. 
The  price  of  the  goods  so  shipped  by  Turing  and  Son  is  wholly  unpaid. 
Turing  and  Son,  hearing  of  Freeman's  bankruptcy  on  the  21st  of  August, 
1786,  indorsed  the  bill  of  lading,  so  retained  by  them,  to  the  defendants, 
and  transmitted  it  to  them,  with  an  invoice  of  the  goods,  authorizing  them 
to  obtain  possession  of  the  goods  on  account  of,  and  for  the  use  and  benefit 
of  Turing  and  Son,  which  the  defendants  received  on  the  28th  of  August, 
1786.     On  the  arrival  of  the  vessel  with  the  goods  at  Liverpool,  on  the  28lh 


616  smith's  leading  cases. 

of  August,  1786,  the  defendants  applied  to  Holmes  for  the  goods,  producing'the 
bill  of  lading,  who  thereupon  delivered  them,  and  the  defendants  took  posses- 
sion of  them  for  and  on  account  of,  and  toand  for  the  use  and  benefit  of  Turing 
and  Son.  The  defendants  sold  the  goods  on  account  of  Turing  and  Son,  the 
proceeds  whereof  amounted  to  557/.  Before  the  bringing  of  this  action  the 
plaintiffs,  demanded  the  goods  of  the  defendants,  and  tendered  to  them  the 
freight  and  charges ;  but  neither  the  plaintiffs  nor  Freeman  have  paid  or 
offered  to  pay  the  defendants  for  the  goods.  To  this  evidence  the  defend- 
ants demurred  ;  and  the  plaintiffs  joined  in  demurrer. 

This  was  argued  in  last  Trinity  Term  by  Erskine  in  support  of  the 
demurrer,  and  Manly  against  it ;  and  again,  on  this  day,  by  Shepherd  in 
support  of  the  demurrer,  and  Bearcroft  contra. 

Shep}}erd,{a)  after  observing  that,  as  the  defendants  were  the  agents  of 
Turing  and  Son,  the  general  question  was  to  be  considered  as  betAveen  ihe 
r*^Qn1  ^o^signor  and  the  indorsee  of  the  *bill  of  lading,  contended,  first, 
L  .  -^  that,  as  between  the  vendor  and  the  vendee  of  goods,  the  former  has 
a  right  to  stop  the  goods  in  transitu,  if  the  latter  becomeinsolvent  before  the 
dehvery  of  them.  And,  secondly,  that  such  right  cannot  be  divested  by  the 
act  of  the  vendee's  indorsing  over  the  bill  of  lading  to  a  third  person.  The 
first  question  has  been  so  repeatedly  determined,  that  it  is  scarcely  necessary 
to  cite  any  authorities  in  support  of  it.  [The  plaintifi^'s  counsel  admitted 
the  position.]  Then,  in  order  to  determine  the  second,  it  is  material  to 
consider  the  nature  of  a  bill  of  lading.  A  bill  of  lading  cannot  by  any 
means  be  construed  into  a  contract  on  the  part  of  the  consignor  to  deliver 
the  goods  mentioned  in  it  to  the  consignee :  it  is  only  an  undertaking  by 
the  captain  to  deliver  the  goods  to  the  order  of  the  shipper.  As  between 
the  consignor  and  consignee,  it  is  a  bare  authority  to  the  captain  to  deliver, 
and  to  the  consignee  to  receive  them.  That  this  is  the  true  nature  of  a  bill 
of  lading  appears  from  all  the  writers  upon  mercantile  law,  as  Molloy, 
Postlethwayte,  and  Beawes.  If  it  be  any  other  sort  of  instrument,  it  must 
be  contended  to  amount  to  a  contract  by  the  consignor  to  deliver  the  goods  to 
the  consignee  :  but  no  such  contract  arises  upon  it,  because  the  consignor  is 
not  even  a  party  to  it ;  and  no  action  could  be  framed  upon  it  against  the 
consignor.  Then,  if  it  be  only  a  bare  authority  to  the  one  to  carry,  and  to 
the  other  to  receive  the  goods,  the  consignee  cannot  transfer  a  greater 
right  than  he  has  ;  neither  can  the  right  of  the  consignor  be  divested  by 
the  act  of  the  consignee.  If  a  bill  of  lading  be  a  negotiable  instrument,  and 
convey  an  indefeasible  property  in  the  goods,  it  must  be  so  by  the  custom 
of  merchants  ;  but  such  custom  is  not  to  be  found  in  any  of  the  books 
treating  upon  the  subject.  There  are  cases  which  establish  a  contrary 
doctrine,  in  which  the  courts  have  held  that  the  rights  of  the  assignees  are 
the  same  as  the  rights  of  the  original  consignees.  It  cannot,  indeed,  be  dis- 
puted but  that,  as  between  the  consignee  and  the  indorsee,  the  indorsement 
of  a  bill  of  lading  is  a  complete  transfer  of  the  property  which  the  consig- 
nee has  in  it :  but  the  cases  go  no  further.  The  case  of  Shee  and  Prescot(6) 
is  precisely  similar  to  the  present.     There  the  bill  of  lading  was  indorsed 

(«)  As  the  second  argument,  witli  the  judgment  of  the  court,  comprehended  everything 
tliat  was  said  upon  the  subject,  tlie  former  argument  is  omitted. 
(b)  1  Atk.  245. 


LICKBARROWV.    MASON.  617 

in  blank,  and  afterwards  indorsed  over  by  the  consignee  to  his  assignees : 
those  assignees  were  some  of  *lhe  defendants  in  that  suit,  and  they  p^oqi-i 
stood  in  the  same  situation  with  the  present  plaintiffs.  In  that  case,  L  J 
before  the  goods  arrived,  and  after  the  indorsement  of  the  bill  of  lading  by 
the  consignee,  the  consignee  having  became  a  bankrupt,  the  goods  were 
stopped  in  transitu  by  order  of  the  consignor  by  an  indorsement  of  the  bill 
of  lading,  which  was  left  with  him,  to  another  of  the  defendants:  there 
Lord  Hardwicke  decreed  that  the  indorsement  did  not  absolutely  transfer 
the  property  in  the  goods,  in  the  event  of  the  consignee's  becoming  a  bank- 
rupt before  the  arri^;al  of  the  goods,  that  as  the  goods  had  been  stopped  in 
transitu,  by  order  of  the  consignor,  he  had  a  right  to  detain  them  till  the 
sum  which  he  was  in  advance  to  the  consignee  on  account  of  them,  was 
paid  ;  and  that  the  surplus  arising  from  the  produce  of  the  goods  should  be 
paid  to  the  indorsees  of  the  consignees.  Now,  unless  Lord  Hardwicke  had 
been  of  opinion  that  the  indorsement  by  the  consignee  did  not  absolutely 
transfer  the  property  in  the  goods,  he  would  have  decreed  that  the  indorsees 
should  "have  been  first  paid  the  money  which  they  had  advanced  upon  the 
credit  of  the  bill  of  lading,  and  then  that  the  surplus  should  have  been  paid 
to  the  consignor  :  but  instead  of  that,  he  gave  a  priority  to  the  consignor. 
This  doctrine  is  not  only  laid  down  in  a  court  of  equity,  but  confirmed  in  a 
court  of  law  in  the  case  of  Savignac  and  Cufl~,(6)  where  the  same  question 
was  tried  between  the  same  parties  as  the  present.  There  Salvetti,  a  mer- 
chant in  Italy,  consigned  a  quantity  of  skins  toLingham,  residing  in  London, 
and  sent  him  a  bill  of  lading  indorsed  in  blank.  Lingham,  the  consignee, 
indorsed  it  to  Savignac  for  a  valuable  consideration,  at  the  invoice  price, 
showing  him  at  the  same  time  the  letters  of  advice  and  the  bills  of  parcels. 
The  consignee  not  accepting  the  bills  of  exchange  which  the  consignor  had 
drawn  upon  him  for  the  amount  of  the  goods,  the  consignor  indorsed  the 
bill  of  lading  remaining  in  his  heinds  to  Cuff,  the  defendant,  with  orders  to 
seize  the  goods  before  they  got  into  the  hands  of  the  consignee,  which  he 
did  :  and  the  action  was  brought  against  him  by  the  indorsee  of  the  consig- 
nee to  recover  the  value  of  the  goods.  Wallace,  Solicitor-General,  there 
argued  that  bj''  the  indorsement  of  the  bill  of  lading  the  property  was  trans- 
ferred. But  Lord  Mansfield  was  of  opinion,  that  the  consignor  had  a  right 
to  stop  the  goods  in  transitu  in  case  of  the  *insolvency  of  the  con-  p=^qQo-i 
signee,  and  that  the  plaintiff;  standing  in  the  same  situation  Avith  the  L  J 
original  consignee,  had  lost  his  lien.  Lord  Mansfield  was  first  of  opinion, 
that  there  was  a  distinction  between  bills  of  lading  indorsed  in  blank  and 
otherwise  ;  but  he  afterwards  abandoned  that  ground.  But  in  that  case,  as 
the  consignor  had  in  point  of  fact  received  ,£150  from  the  consignee,  there 
was  a  verdict  for  the  plaintiff  for  that  sum.  So  that  the  result  of  the.  verdict 
was,  that  the  consignor  was'  entitled,  under  those  circumstances,  to  retain 
all  the  goods  consigned,  deducting  only  the  sum  which  he  had  actually  re- 
ceived for  part.  Both  these  cases  establish  the  construction  of  the  bill  of 
lading  contended  for;  and  it  is  observed  that  the  verdict  in  the  latter  one 
was  acquiesced  in.  And  indeed  to  construe  it  otherwise  would  be  .opening 
a  great  door  to  fraud,  and  would  be  placing  the  indorsee  of  a  consignee  of  a 
bill  of  lading  in  a  better  situation  than  the  consignee  himself  in  case  of  his 

(a)  Sittings  at  GuildhalJ,  cor.  Lord  Mansfield,  Tr.  ]  778. 


618  smith's     LEADING    CASES. 

insolvency.  Suppose  the  consignee  assign  ovej-  to  a  third  person,  who  he- 
comes  insolvent  before  the  delivery  of  the  goods,  such  assignee  would  then 
notwithstanding  his  insolvency,  have  a  right  to  get  the  goods  into  his  pos- 
session ;  for  if  the  act  of  indorsement  absolutely  divests  the  property  out  of 
the  consignor,  he  can  never  afterwards  get  possession  of  the  goods  again  ; 
or  else  this  consequence  would  follow,  that  the  vendor  would  have  a.  right 
to  seize  the  goods  in  transitu  till  the  indorsement,  by  which  his  right  would 
be  divested,  and  that  by  the  act  of  insolvency  of  the  indorsee  it  would  be 
revested.  This  has  never  been  considered  to  be  the  same  sort  of  instrument 
as  a  bill  of  exchange  ;  they  are  not  assimilated  to^ach  other  in  any  treatise 
upon  the  subject :  nay,  bills  of  exchange  are  said  to  be  sui  juris.  In  their 
nature  they  are  different ;  a  bill  of  exchange  always  imports  to  be  for  value 
received  ;  but  the  very  reverse  is  the  case  with  a  bill  of  lading.  For  in 
few,  if  any,  instances,  is  the  consignor  paid  for  his  goods  till  delivery  ;  and 
bills  of  exchange  were  first  invented  for  tTie  purpose  of  Temitting  money 
from  one  country  to  another,  which  is  not  the  case  with  bills  of  lading.  As 
to  the  case  of  Wright  and  Campbell, (rt)  which  may  be  cited  on  the  other 
side,  it  will  perhaps  be  said  that  the  court  awarded  a  new  trial  only  on  the 
r*QQQT  g^Lind  of  fraud  :  but  non  constat  that,  if  there  had  been  no  suspi- 
>-  -I  cion  of  fraud,  a  new  trial  would  not  have  been  granted.  *So  that 
the  law  cannot  be  considered  to  have  been  decided  in  that  case ;  for  when 
a  new  trial  4s  moved  for,  if  the  facts  warrant  it,  the  court  awards  a  new  trial 
without  going  into  the  law  arising  upon  those  facts.  In  such  cases  the  law 
is  still  left  open  to  be  considered  on  a  different  finding;  since  it  would  be 
nugatory  to  determine  the  point  of  law,  which  may  not  perhaps  be  applica- 
ble to  the  facts  wben  found.  At  the  most,  there  is  only  an  inference  of  law 
to  be  drawn  from  that  case,  which  is  not  sufficient  to  overturn  established 
principles.  Besides,  this  case  is  distinguishable  from  that;  for  there  it  ap- 
peared that  the  consignee  was  the  factor  of  the  consignor,  and  as  such  might 
bind  his  principal  by  a  sale. 

Bearcroft,  contra. — The  question  is,  whether  the  bona  fide  indorsement 
for  a  valuable  consideration  of  a  bill  of  lading  to  a  third  person  is  not  an 
absolute  transfer  of  the  whole  property  ?  This  question  is  of  infinite  impor- 
tance to  the  mercantile  world,  and  has  never  yet  been  put  in  a  way  to  receive 
a  solemn  decision  in  a  court  of  law.  For  at  mos-t  it  has  onfy  been  consider- 
ed in  a  court  of  equity  upon  equitable  principles,  or  at  Nisi  Prius  in  a  case 
the  correct  stale  of  which  is  to  be  doubted.  The  form  of  the  bill  of  lading  is 
material  to  be  attended  to  in  determining  this  case  ;  it  is,  that  the  goods  are 
to  be  delivered  "  ta  order  or  to  assigns  ;"  therefore,  on  the  very  face  of  the 
instrument,  there  is  an  authority  to  the  captain  to  deliver  them  to  the  con- 
signee or  his  assigns  ;  and  the  question  here  is,  who  are  his  assigns  ?  As 
between  the  consignor  and  consignee  the  rule  contended  for  is  not  now  to  be 
disputed,  since  it  has  been  confirmed  by  so  manj;- authorities;  though,  perhaps, 
it  were  much  to  be  wished  that  it  had  never  been  established  :  but  there 
will  be  danger  in  extending  it  farther.  AVilh  respect  to  the  case  of  Snee 
and  Prescot,  when  it  is  considered  who^were  the  parties  to  the  cause, 
in  what  court,  and  upon  what  principles,  it  was  decided,  it  will  not  be 
found  sufficient  to  determine  the  present  case.     The  actors,  the  plaintiffs, 

(a)  4  Burr.  2046. 


LICKBfA.RROW    V.    MASON.  6W. 

were  not  the  innocent  purchasers  of  a  bill  of  lading;  they  were  the 
assignees  of  a  bankrupt,  and  prayed  by  their  bill  to  get  possession  of  the 
goods,  notwithstanding  they  had  not  paid  for  them.  But  this  is  a  case 
between  the  consignor  and  third  persons  who  have  paid  a  valuable  conside- 
ration for  the  goods;  that  case  was  likewise  *in  a  court  of  equity,  [-*oq4-i 
where  the  leading  principle  is,  that  he  who  seeks  equity,  must  first  "-  -^ 
do  what  is  equitable  ;  there  too  the  decision  was  founded,  in  some  measure, 
on  the  custom  of  the  Leghorn  trade,  and  the  construction  of  the  statute 
relating  to  mutual  credit;  so  that  there  were  united  a  number  of  circum- 
stances which,  taken  altogether,  induced  Lord  Hardwicke's  decree,  and 
which  do  not  exist  in  the  present  case.  And  it  is  to  be  remarked  that  Lord 
Hardwicke,  thinking  it  a  harsh  demand  against  the  consignors,  said,  "he 
would  lay  hold  on  any  thing  to  save  the  advantage"  which  the  consignors 
had,  by  regaining  possession  of  the  goods  before  they  got  into  the  hands  of 
the  indorsees  of  the  consignee.  Then,  as  to  the  case  of  Savignac  v.  CufT, 
that  had  not  even  the  authority  of  a  Nisi  Prius  determination  ;  Lord  Mans- 
field gave  no  opinion  upon  this  question  ;  for  though  he  said  there  was  no 
doubt  but  that,  as  between  the  vendor  and  the  vendee,  the  former  might 
seize  the  goods  in  transitu,  if  the  latter  became  insolvent  before  they  were 
delivered,  yet  there  he  stopped  ;  so  that  the  inclination  of  his  mind  may  be 
presumed  to  have  been  against  extending  the  rule.  And,  after  all,  the 
whole  circumstances  of  that  case  were  left  to  the  consideration  of  a  jury. 
Since  Lord  Raymond's  time(o)  it  has  been  taken  to  be  clear  and  established 
law  that  a  general  indorsement  of  a  bill  of  lading  does  transfer  the  property. 
And  Flolt,  Chief  Justice,  then  said  "that  a  consignee  of  a  bill  of  lading  has 
such  a  property  as  that  he  may  assign  it  over."  It  has  now  been  con- 
tended that  the  right  of  the  consignor  ought  not  to  be  divested  by  the  act  of 
the  consignee  :  but  it  is  not  by  the  act  of  the  consignee  alone  ;  for  the  con- 
signor has  by  his  own  act  enabled  the  consignee  to  defeat  his  right.  If  he 
had  been  desirous  of  restraining  the  negotiability  of  the  bill  of  lading,  instead 
of  making  a  general  indorsement,  he  should  have  made  a  special  indorse- 
ment to  his  own  use.  And  then  the  holder  of  the  bill  of  lading  would  have 
been  considered  as  a  trustee  for  the  consignor.  The  custom  of  merchants 
has  established  that  the  delivery  of  a  bill  of  lading  transfers  the  whole  pro- 
perty. Evans  v.  Martlett,  1  Lord  Rdymond,  271  ;  Wright  v.  Campbell,  4 
Burr.  2046 ;  and  Caldwell  v.  Ball,  ante,  1  vol.  205.(6)  Then  it  has  been 
said,  that  a  bill  of  lading  is  not  transferable  like  a  bill  of  exchange  ;  but  the 
custom  of  merchants  has  made  that  transferable  *which  in  its  nature  p=^qQp:-i 
perhaps  is  not  so;  and  the  cases  above  referred  to  decide  that  point.  L  -I 
Though  a  new  trial  in  the  case  of  Wright  v.  Campbell  was  granted  on  a 
suspicion  of  fraud,  and  the  law  was  not  expressly  adjudged  ;  yet  from  what 
w^as  said  by  the  court  it  may  be  collected  that  no  new  trial  would  have  been 
awarded,  if  no  fraud  had  existed  ;  and  the  opinion  of  Lord  Mansfield,  as  far 
as  it  goes,  is  expressly  in  point.  But,  above  all  arguments,  public  conve- 
nience ought  to  have  a  considerable  influence  in  the  decision  of  this  ques- 
tion. By  the  constant  course  and  the  universal  consent  and  opinion  of 
merchants,  bills  of  lading  are  negotiable  ;  it  is  highly  convenient  to  trade 
that  they  should  be  so  ;  and  if  this  case  should  be  determined  against  the 

(a)  1  Lord  Raym.  271.  (6)  Vide  Hibbert  v.  Carter,  ante,  1  vol.  745.  • 


620  smith's    LEADING     CASES. 

plaintiffs,  one  of  the  principal  currents  of  trade  will  be  stopped  :  besides,  it 
will  be  a  hardship  on  an  innocent  vendee. 

Shepherd,  in  reply. — Though  there  may  be  some  hardship  on  the 
vendee  if  he  be  to  suffer,  yet  the  hardship  would  be  equally  great  on  the 
vendor,  who  would  by  a  decision  against  him  be  compelled  to  deliver  up 
the  possession  of  his  goods,  though  at  the  time  of  the  delivery  he  knew  that 
he  should  not  receive  any  consideration  for  them.  But  convenience  requires 
that,  if  one  of  these  two  innocent  persons  must  suffer,  the  loss  should  be 
sustained  by  the  consignee.  For  when  a  vendor  consigns  his  goods,  he 
knows  that  by  the  general  law  he  has  a  right  to  stop  them  in  transitu,  if  the 
consignee  become  insolvent  before  delivery.  But  when  an  indorsee  takes 
an  assignment  of  a  bill  of  lading,  he  takes  it  with  a  knowledge  of,  and 
subject  to,  that  general  right  which  the  vendor  has.  Though  the  case  of 
Snee  v.  Prescot  was  determined  in  a  court  of  equity,  yet  that  court  could 
not  alter  the  effect  and  nature  of  a  legal  instrument ;  whkh  it  must  have 
done  in  that  case  if  the  right  of  an  indorsee  is  to  be  preferred  to  the  con- 
signor. Suppose  A.  sends  a  bill  of  lading  of  goods  to  B.,  and  the  goods 
themselves  are  in  fact  never  sent  out  of  his  possession:  if  the  indorsement 
of  the  bill  of  lading  can  be  said  to  transfer  the  property,  the  indorsee  would 
have  a  right  to  recover  the  goods  as  against  the  original  consignor,  who  had 
never  parted  with  the  possession  of  them.  So  that  the  rule  contended  for 
would  not  only  divest  the  right  which  the  consignor  has  to  seize  the  goods 
in  transitu,  but  would  also  compel  him  to  part  with  his  goods,  without 
^  receiving  *any  consideration,  although  he  had  never  reliiwjuished 

L  -^  the  possession.  The  meaning  of  the  dictum  of  Lord  Holt,  in 
Evans  V.  Martlett,  is  onlythat  the  consignee  may  assign  over  that  right 
which  he  has.  The  case  of  Caldwell  v.  Ball  was  merely  a  question 
between  two  solvent  indorsees,  both  of  whom  had  an  equitable  title  ;  and 
that  case  only  decided  that  he  who  first  got  possession  of  one  of  the  bills  of 
lading  was  entitled  to  the  goods  ;  and  there  too,  the  court  determined  in 
favour  of  him  who  had  the  possession. 

Anhhurst,  J. — As  this  was  a  mercantile  question  of  very  great  importance 
to  the  public,  and  had  never  received  a  solemn  decision  in  a  court  of  law, 
we  were  for  that  reason  desirous  of  having  tire  matter  argued  a  second  time, 
rather  than  on  account  of  any  great  great  doubts  which  we  entertained  on 
the  first  argument.  AVe  may  lay  it  down  as  a  broad  general  principle,  that 
wherever  one  of  two  innocent  persons  must  suffer  by  the  acts  of  a  third,  he 
who  has  enabled  such  third  person  to  occasion  the  loss  must  sustain  it. 
If  that  be  so,  it  will  be  a  strong  and  leading  clue  to  the  decision  of  the  present 
case.  It  has  been -argued,  that  it  would  be  very  hard  on  a  consignor,  Avho 
had  received  no  consideration  for  his  goods,  if  he  should  be  obliged  to  deliver 
them  up  in  case  of  the  insolvency  of  the  consignee,  and  come  in  as  a  creditor 
under  his  commission  for  what  he  can  get.  That  is  certainly  true  :  but  it  is 
a  hardship  which  he  brings  upon  himself.  When  a  man  sells  goods,  he 
sells  them  on  the  credit  of  the  buyer  :  if  he  deliver  the  goods,  the  properly 
is  altered,  and  he  cannot  recover  them  back  again,  though  the  vendee  imme- 
diately become  a  bankrupt.  But  where  the  delivery  is  to  be  at  a  distant 
place,  as  between  the  vendor  and  vendee,  the  contract  is  ambulatory  till 
delivery  ;  and,  therefore,  in  case  of  the  insolvency  of  the  vendee  in  the  mean- 
time, the  vendor  may  stop  the  goods  in  transitu.     But,  as  between  the  ven- 


LICKBARROWV.     MASON.  621 

dor  and  third  persons,  the  delivery  of  a  bill  of  lading  is  a  delivery  of  the 
goods  themselves  ;  if  not,  it  would  enable  the  consignee  to  make  the  bill  of 
Jading  an  instrument  of  fraud.  The  assignee  of  a  bill  of  lading,  trusts  to 
the  indorsement ;  the  instrument  is  in  its  nature  transferable  ;  in  this  respect, 
therefore,  this  is  similar  to  the  case  of  a  bill  of  exchange.  If  the  consignor 
had  intended  to  restrain  the  negotiability  of  it,  he  should  have  confined  the 
delivery  of  the  goods  to  the  vendee  only:  but  he  has  *made  it  an  p^qQ7i 
indorsable  instrument.  So  it  is  like  a  bill  of  exchange  ;  in  which  L  J 
case,  as  between  the  drawer  and  the  payee,  the  consideration  may  be  gone 
into,  yet  it  cannot  between  the  drawer  and  an  indorsee;  and  the  reason  is, 
because  it  would  be  enabling  either  of  the  original  parties  to  assist  in  a  fraud. 
The  rule  is  founded  purely  on  principles  of  law,  and  not  on  the  custom  of 
merchants.  The  custom  of  merchants  only  establishes  that  such  an  instru- 
t  in^nt  may  be  indorsed :  but  the  effect  of  that  indorsement  is  a  question  of 
law,  which  is,  that  as  between  the  original  parties  the  consideration  maybe 
inquired  into;  though  when  third  persons  are  concerned,  it  cannot.  This  is 
also  the  case  with  respect  to  a  bill  of  lading.  Though  the  bill  of  lading  in 
this  case  was  at  first  indorsed  in  blank,  it  is  precisely  the  same  as  if  it  had 
been  originally  indorsed  to  this  person  ;  for  when  it  was  filled  up  with  his 
name,  it  was  the  same  as  if  made  to  him  only.  Then  what  was  said  by 
Lord  Mansfield  in  the  case  of  Wright  v.  Campbell,  goes  the  full  length  of 
this  doctrine  :  "  If  the  goods  be  bona  fide  sold  by  the  factor  at  sea,  (as  they 
may  be  where  no  other  delivery  can  be  given,)  it  will  be  good  notwithstand- 
ing the  statute  21  Jac.  1,  c.  19.  The  vendee  shall  hold  them  by  virtue  of 
the  bill  of  sale,  though  no  actual  possession  is  delivered  :  and  the  owner  can 
never  dispute  with  the  vendee,  because  the  goods  were  sold  bona  fide,  and 
by  the  owner's  own  authority."  Now  in  this  case  the  goods  were  transferred 
by  the  authority  of  the  vendor,  because  he  gave  the  vendee  a  power  to  trans- 
fer them  :  and  being  sold  by  his  authority,  the  property  is  altered.  And  I 
am  of  opinion  that  this  right  of  the  assignee  could  not  be  divested  by  any 
subsequent  circumstances. 

Buller,  J. — This  case  has  been  very  fully,  very  elaborately,  and  very 
ably  argued,  both  now  and  in  the  last  term  ;  and  though  the  former  argu- 
ments on  the  part  of  the  defendant  did  not  convince  my  mind,  yet  they 
staggered  me  so  much  that  I  wished  to  hear  a  second  argument.  Before  I 
consider  the  effect  of  the  several  authorities  which  have  been  cited,  I  will 
take  notice  of  one  circumstance  in  this  case  which  is  peculiar  to  it  ;  not  for 
the  purpose  of  founding  my  judgment  upon  it,  but  because  I  would  not  have 
it  supposed  in  any  future  case  that  it  passed  unnoticed,  or  that  it  may  not 
hereafter  Jiave  any  effect  which  it  ought  to  have.  In  this  case  it  is  stated 
that  there  were  four  bills  of  *lading  ;  it  appears  by  the  books  treat-  p^qoon 
ing  on  this  subject,  that  according  to  the  common  course  of  merchants  L  -■ 
there  are  only  three  ;  one  of  which  is  delivered  to  the  captain  of  the  vessel, 
another  is  transmitted  to  the  consignee,  and  the  third  is  retained  by  the  con- 
signor himself,  as  a  testimony  against  the  captain  in  case  of  any  loose  dealing. 
Now  if  it  be  at  present  the  established  course  among  merchants  to  have  onh^ 
three  bills  of  lading,  the  circumstance  of  there  being  a  fourth  in  this  case 
might,  if  the  case  had  not  been  taken  out  of  the  hands  of  the  jury  by  the 
demurrer,  have  been  proper  for  their  consideration.  I  am  aware  that  that 
circumstance  appears  in  the  bill,  on  which  is  written,  "in  witness  the 


622  smith's  leading  cases. 

master  hath  affirmed  to  four  bills  of  lading,  all  of  this  tenor  and  date." 
But  we  all  know  that  it  is  not  the  practice  either  of  persons  in  trade  or  in 
the  profession  to  examine  very  minutely  the  words  of  an-  instrument  which 
is  partly  printed  and  partly  written  ;  and  if  we  only  look  at  the  substance 
of  such  an  instrument,  this  may  be  the  means  of  enabling- the- consignee 
to  commit  a  fraud  on  an  innocent  person.  Then  how  stood  the-  consignee 
in  this  case?  He  had  two  of  the  bills  of  lading,  and  the  captain  must  have 
a  third  ;  so  that  the  assignee  could  not  imagine  that  the  consignor  had  it  in 
his  power  to  order  a  delivery  to  any  other  person.  -But  I  mean  to  lay 
this  circumstance  entirely  out  of  my  consideration  in  the  present  case, 
which  I  think  turns  wholly  on  the  general  quesliori';  and  I  make  the  ques- 
tion even  more  general  than  was  made  at  the  bar,  namely,  whether  a  bill 
of  lading  is  by  law  a  transfer  of  the  property  ?  This  question  has  been 
argued  upon  authorities  ;  and  before  I  take  notice  of  any  particuler  objec- 
tions which  have  been  made,  I  will  consider  those  authorities.  The  prin- 
cipal one  relied  on  by  the  defendants  is  that  of  Snee-  v.  .Prescot. . .  Now, 
sitting  in  a  court  of  law,  I  should  think  it  quite  sufficient  to  say,-  that  that 
was  a  determination  in  a  court  of  equity,  and  founded  on  equitable  principles. 
The  leading  maxim  in  that  court  is,  that  he  who  seeks  equity,  rfiust  first  do 
equity.  I  am  not  disposed  to  find  fault  with  that  determination  as  a  case  in 
equity  ;  but  it  is  not  sufficient  to  decide  sUcha  question  as  that  no'w  before 
us..  Lord  Hardwicke  has,  with  his  usualcaution,  enumerated  every  cir- 
cumstance which  existed  in  the  case  :  and  indeed  he  has  been  so  particular, 
r*QQai  ^^^^  ^^  ^^^^  printed  note  of  it  *be  accurate,  which  I  doubt,  it  is  not 
L  -'an  authority  for  any  case  which  is  not  precisely  similar  to  it. 
The  only  point  of  law  in  that  case  is  upon  the  forms  of  the  bills  of  lading; 
and  Lord  Hardwicke  thought  -there  was  a  distinction  between  bills  of  lading 
indorsed  in  blank,  and  .those  indorsed  to  particular  persons;  but  it  was- 
properly  admitted  at  the  bar  that  this  distinction  cannot  now  be  supported. 
Thus  the  matter  stood  till  within  these  thirty  years  ;  since  that,  timelhe 
commercial  law  of  this,  country  haslaken  a  very  different  turn  from  what  it 
did  before.  W.e  find  in  Snee  .v.  Prescot  that  Lord  Hardwicke  himself 
was  proceeding  with  great  caution,  not  establishing  any  general  principle,- 
but  decreeing  on  all  the  circumstances  of  the  case  put  together.  Before 
that  period  we  find  that  in  courts  of  law  all  the  evidence  in  mercantile  ca§es 
was  thrown  together  ;  they  were  left  generally  to  a  jury,  and  they  produced 
no  established  principle.  From  that  time  we  all  know  the  great  study  has 
been  to  find  some  certain  general  principles,  which  shall  be  known  to  all 
mankind,  not  only  to  rule  the  particular  case  then  under  consideration,  but 
to  serve  as  a  guide  for  the  future.  Most  of  us  have  heard  these  principles 
stated,  reasoned  upon,  enlarged,  and  explained,  till  we  have  been  lost  in 
admiration  at  the  strength  and  stretch  of  the  human  understanding.  And 
I  should  be  very  sorry  to  find  myself  under  a  necessity  of  differing  from 
any  case  on  this  subject  which  has  been  decided  by  Lord  Mansfield,  who 
may  be  truly  said  to  be  the  founder  of  the  commercial  law  of  this  country. 
I  hope  to  show,  before  I  have  finished  my  judgment,  that  there  has  been 
no  inconsistency  in  any  of  his  determinations:  but  if  there  had,  if  I  could 
not  reconcile  an  opinion  which  he  had  delivered  at  Nisi  Prius  with  his 
judgment  in  this  court,  I  should  not  hesitate  to  adopt  the  latter  in  prefer- 
ence to  the  former:  and  it  is  but  just  to  say,  that  no  judge  ever  sat  here 


^LICKBARROW    V.     MASON.  623 

more  ready  than  he  was  to  correct  an  opinion  suddenly  given  at  Nisi  Prius. 
First,  as  to  the  case  of  Wright  v.  Campbell,  that  was  a  solemn  opinion 
delivered  in  this  court.  In  my  opinion  this  is  one  of  the  best  cases  that 
we  have  in  the  law  on  mercantile  subjects.  There  are  four  points  in  that 
case,  which  Lord  Mansfield  has  stated  so  extremely  clear  that  they  cannot 
be  mistaken.  The  first  is,  what  is  the  case  as  between  the  owner  of  the 
goods  and  the  factor;  the  second,  *as  between  the  consignor  and  r-if^QQ-i 
the  assignee  of  the  factor  with  notice  ;  thirdly,  as  between  the  same  L  J 
parties  without  notice  ;  and,  fourthly,  as  to  the  nature  of  a  bill  of  sale  of 
goods  at  sea  in  general.  It  is  to  be  recollected  that  the  case  of  Wright  v. 
Caiupbeli  was  decided  by  the  judge  at  Nisi  Prius  upon  the  ground  that  the 
bill  of  lading  transferred  the  whole  property  at  law  ;  and  when  it  came  before 
this  court  on  a  motion  for  a  new  trial,  Lord  Mansfield  confirmed  that 
opinion  ;  but  a  new  trial  was  granted  on  a  suspicion  of  fraud  :  therefore  it 
is  fair  to  infer,  that  if  there  had  been  no  fraud,  the  deliveryof  the  bill  of 
lading  would  have  been  final.  If  there  be  fraud,  it  is  the  same  as  if  the 
question  were  tried  between  the  consignor  and  the  original  consignee. 
According  to  a  note  of  Wright  v.  Campbell,  which  I  took  in- court.  Lord 
Mansfield  said,  that  since  the  case  in  Lord  Raymond,  it  liad  always  been 
held  that  the  delivery  of  a  bill  of  lading  transferred  the  property  at  law : 
if  so,  every  exception  to  that  rule  arises  from  equitable  considerations  which 
have  been  adopted  in  courts  of  law.  The  next  case  is  that  of  Savignac  v. 
Cuff",  the  note  of  which  is  too  loose  to  be  depended  upon  :  but  there  is  a 
circumstance  in  that  case  which  might  afford  ample  ground  for  the  deci- 
sion ;  for  I  cannot  suppose  that  Lord  Mansfield  had  forgotten  the  doctrine 
which  he.  laid  down  in  this  court  in  Wright  v.  Campbell.  There  he 
observed  very  minutely  on  what  did  not  appear  at  the  trial,  that  no  letters 
were  produced,  and  that  no  price  was  fixed  for  the  goods:  but  in  Savignac 
V.  Cuffi  the  plaintiff'had  not  only  the  bills  of  lading  and  the  invoice,  but  he 
had  also  the  letters  of  advice,  from  which  the  real  transaction  must  have 
appeared  ;  ^nd  if  it  appeared  to  him  that  Selvetti  had  not  paid  for  the 
goods,  that  might  have  been  a  ground  for  the  determination.  The  case  of 
Huiiter  V.  Bcal,(«)  does  not  come  up  to  the  point  now  in  dispute;  it  only 
determines  what  is  admitted,  that  as  between  the  vendor  and  vendee,  the 
property  is  not  altered  till  delivery  of  the  goods.  With  respect  to  the  case 
of  Stokes  v.  La  Riviere, (6)  perhaps  there  may  be  some  doubts  about  the 
facts  of  it ;  however,  it  was  determined  upon  a  different  ground  :  for  the 
goods  were  in  the  hands  of  an  agent  for  both  parties :  that  case,  therefore, 
does  not  impeach  the  doctrine  laid  down  in  Wright  v.  Campbell.  It  has 
been  argued  at  the  bar,  that  it  is  impossible  for  the  *holder  of  a  bill  rj^jf.^-^ 
of  lading  to  bring  an  action  on  it  against  the  consignor ;  perhaps  ^  J 
that  argument  is  well  founded:  no  special  action  on  the  bill  of  lading  has 
ever  been  brought;  for  if  the  bill  of  lading  transfer  the  property,  an  action 
of  trover  against  the  captain  for  non-delivery,  or  against  any  other  person 
who  seizes  the  goods,  is  the  proper  form  of  action.  If  an  action  be  brought 
by  a  vendor  against  a  vendee,  between  whom  a  bill  of  lading  has  passed, 
the  proper  action  is  for  goods  sold  and  delivered.  Then  it  has  been  said 
that  no  case  has  yet  decided  that  a  bill  of  lading  does  transfer  the  property  : 

(a)  Sittings  after  Trin.  1785,  at  Guildhall,  before  Lord  Mansfield,  C.  J. 
C6)  Hil.  25  G.  3. 


624  smith's   leading   cases. 

but  in  answer  to  that  it  is  to  be  observed,  that  all  the  cases  upon  the  subject 
— ^Evans  V.  Marllelt,  Wright  v.  Campbell,  and  Caldwell  v.  Ball,  and  the 
universal  understanding  of  mankind — preclude  that  question.  The  cases 
between  the  consignor  and  consignee,  have  been  founded  merely  on  prin- 
ciples of  equity,  and  have  followed  up  the  principle  of  Snee  v.  Prescot  ; 
for  if  a  man  has  bought  goods,  and  has  not  paid  for  them,  and  cannot  pay 
for  them,  it  is  not  equitable  that  he  should  prevent  the  consignor  from 
getting  his  goods  back  again,  if  he  can  do  it  before  they  are  in  fact  delivered. 
There  is  no  weight  in  the  argument  of  hardship  on  the  vendor:  at  any 
rate  that  is  a  bad  argument  in  a  court  of  law  ;  but  in  fact  there  is  no  hard- 
ship on  him,  because  he  has  parted  with  the  legal  title  to  the  consignee. 
An  argument  was  used  with  respect  to  the  difficulty  of  determining  at  what 
time  a  bill  of  lading  shall  be  said  to  transfer  the  property,  especially  in  a 
case  where  the  goods  were  never  sent  out  of  the  merchant's  warehouse  at 
all :  the  answer  is,  that  under  those  circumstances  a  bill  of  lading  could  not 
possibly  exist,  if  the  transaction  were  a  fair  one  ;  for  a  bill  of  lading  is  an 
acknowledgment  by  the  captain,  of  having  received  the  goods  on  board  his 
ship  ;  theHefore  it  would  be  a  fraud  on  the  captain  to  sign  such  a  bill  of 
lading,  if  he  had  not  received  goods  on  board  ;  and  the  consignee  would 
be  entitled  to  his  action  against  the  captain  for  the  fraud.  As  the  plaintiff 
in  this  case  has  paid  a  valuable  consideration  for  the  goods,  and  there  is  no 
colour  for  imputing  fraud  or  notice  to  him,  I  am  of  opinion  that  he  is  entitled 
to  th®  judgment  of  the  court. 

Grose,  J. — After  this  case  has  been  so  elaborately  spoken  to  by  my 
brethren,  it  is  not  necessary  for  me  to  enter  fully  into  the  question,  as  I  am 
J.  of  the  same  opinion  with  them.     *But  I  think  that  the  importance 

L  J  of  the  subject  requires  me  to  state  the  general  grounds  of  my 
opinion.  I  conceive  this  to  be  a  mere  question  of  law,  whether,  as  between 
the  vendor  and  the  assignee  of  the  vendee,  the  bill  of  lading  transfers  the 
property.  I  think  that  it  does.  With  respect  to  the  question  as  between 
the  original  consignor  and  consignee,  it  is  now  the  clear,  known  and  esta- 
blished law,  that  the  consignor  may  seize  the  goods  in  transitu,  if  the  con- 
signee become  insolvent  before  the  delivery  of  them.  But  that  was  not 
always  the  law.  The  first  case  of  that  sort  was  that  of  Wiseman  v.  Vande- 
putt  in  Chancery, (a)  when,  on  the  first  hearing,  the  Chancellor  ordered  an 
action  of  trover  to  be  brought,  to  try  whether  the  consignment  vested  the 
property  in  the  consignees  ;  and  it  was  then  determined  in  a  court  of  law 

•  that  it  did ;  but  the  court  of  equity  thought  it  right  to  interpose  and  give 
relief;  and  since  that  time  it  has  always  been  considered,  as  between  the 
original  parties,  that  the  consignor  may  seize  the  goods  before  they  are 
actually  delivered  to  the  consignee  in  case  of  the  insolvency  of  the  con- 

,  signee.  But  this  is  a  question  between  the  consignor  and  the  assignee  of 
the  consignee,  who  do  not  stand  in  the  same  situation  as  the  original  par- 
ties. A  bill  of  lading  carries  credit  with  it ;  the  consignor  by  his  indorse- 
ment gives  credit  to  the  bill  of  lading,  and  on  the  faith  of  that,  money  is 
advanced.  The  first  case  that  I  find  where  an  attemp't  was  made  to  intro- 
duce the  same  law  between  the  consignor  and  the  indorsee  of  the  consignee, 
is  that  of  Snee  v.  Prescot ;  but  as  my  brother  BuUer  has  already  made  so 

(a)  2  Vern.  203. 


MASON     V.     LICKBARROVV.  625 

many  observations  on  that  case,  it  would  be  but  repetition  in  me  to  go  over 
thetn  again,  as  I  entirely  agree  with  him  in  them  all,  as  well  as  in  those 
which  he  made  on  the  other  cases.  Therefore  I  am  of  opinion  that  there 
should  be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff,(a) 


MASON  AND  OTHERS  V.  LICKIIAKROW  AND  OTHERS,  UN  THE  EXCHEQUER 
CHAMBER,  IN  ERROR. 

Held  in  Cam.  Scacc.  that  where  the.eonsignee  of  goods  becomes  insolvent,  the  consignor 
may  stop  them  in  transita,  before  the  consignee  gains  possession.  In  such  case  also 
the  consignor  may  slop  the  goods  in  transitu,  though  the  consignee  assign  the  bills  of 
lading  la  a  third  person  for  a  valuable  consideration;  the  right  of  the  consignor  not 
being  divested  by  tiie  assignment.  Dut  this  judgment  was  reversed,  and  the  latter 
point  is  now  settled  otherwise. 

^  - 

The  defendants  in  the  original  action,  having  brought  a  writ  of  error - 
in  the  Exchequer  Chamber,  after  two  arguments,  the  following  judgment 
of  that  court  was  there  delivered  by 

Lord  Loughborough. — This  case  comes  before  the  court  on  a  demurrer 
to  the  evidence  ;  the  general  question,  *therefore,  is,  whether  the 
facts  offered  in  evidence  by  the  plaintiffs  in  the  action  are  sufficient  L"*"'*J 
to  warrant  a  verdict  in  their  favour?  . 

The  facts  are  shortly  these  :  On  the  22d  of  July,  1786,  Messrs.  Turings 
shipped  on  board  the  ship  Endeavour,  of  which  Holmes  was  master,  at 
Middleburgh,  to  be  carried  to  Liverpool,  a  cargo  of  goods  by  the  order  and 
directions  and  on  the  account  of  Freeman,  of  Rotterdam,  for  which,  of  the 
same  date,  bills  of  lading  were  signed  on  behalf  of  the  master,  to  deliver 
the  goods  at  Liverpool,  specified  to  be  shipped  by  Turings  to  order  or  to 
assigns.  On  the  same  22d  of  July,  two  of  the  bills  of  lading,  indorsed  in 
blank  by  Tarings,  were'transmitted  by  them,  together  with  an  invoice  of  the 
goods,  to  Freeman  at  Rotterdam,  and  were  duly  received  by  him,  that  is,  in 
the'  course  of  post,  one  of  the  bills  being  retained  by  Turings.  I  take  no 
notice  of  their  being  four  bills  of  lading,  because  on. that  circumstance  I  lay 
no  stress.  On  the  25th  of  July,  bills  of  exdiange  for  a  sum  of  477/.,  beiiKr 
the  price  of  the  goods,  were  drawn  by  Turings,  and  accepted  by  Freeman 
at  Rotterdam;  and  Freeman  on  the  same  day  transmitted  to  the  plaintiffs 
in  the  action,  merchants  at  Liverpool,  the  bills  of  lading  and  invoice,  which 
he  had  received  from  Turings,  in  order  that  the  goods  might  be  sold  by  them 
on  his  account :  and  of  the  same  date  drew  upon  them  bills  to  the  amount 
of  520/.  which  were  duly  accepted,  and  have  since  been  paid  by  them  ; 
and  for  Avhich  they  have  never  been  reimbursed  by  Freeman,  who  became 
a  bankrupt  on  the  15ih  of  August  following.  The  bills  accepte-d  by  Free- 
man, for  the  price  of  the  goods  shipped  by  Turings,  had  not  become  due  on 

(a)  This  judgment  was  afterwards  reversed  in  the  Exchequer  Chamber.  Vide  Mason 
V.  Lickbarrow,  infra.  But  the  record  being  afterwards  removed  into  th?  House  of  Lords, 
a  venire  de  novo  was  awarded  in  June,  1793.     Vide  post,  p,  4/4, 

Vol.  I.— 40 


636  smith's  leading   cases. 

the  15th  of  August,  but  on  notice  of  his  bankruptcy,  they  sent  the  bill  of 
lading  which  remained  in  their  custody  to  the  defendants  at  Liverpool, 
with  a  special  indorsement  to  deliver  to  them  and  no  other  ;  which  the 
defendants  received  on  the  28th  of  August,  1786,  together  with  the  invoice 
of  the  goods  and  a  power  of  attorney.  The  ship  arrived  at  Liverpool  on 
the  28th  of  August,  and  the  goods  were  delivered  by  the  master,  on  account 
of  Turings,  to  the  defendants,  who,  on  demand  and  tender  of  freight,  refused 
to  deliver  the  same  to  the  plaintiffs. 

The  defendants,  in  this  case,  are  not  stake  holders,  but  they  are  in  effect 
r*A(\A~\  ^^^  ssfi^e  as  Turings,  and  the  possession  *they  have  got  is  the  pos- 
L  -'  session  of  Turings.  The  plaintiffs  claim  under  Freeman  ;  but  . 
though  they  derive  a  title  under  him,  they  do  not  represent  him,  so  as  io 
be  answerable  for  his  engagements;  nor  are  they  affected  by  any  notice  of 
those  circumstances  which  would  bar  the  claim  of  him  or  of  his  assignees. 
If  they  have  acquired  a  legal  right,  they  have  acquired  it  honestly  :  and  if 
they  have'  trusted  to  a  bad  title,  they  are  innocent  sufferers.  The  question 
then  is,  whether  the  plaintiffs  have  a  superior  legal  title  to  that  right  which, 
on  principles  of  natural  justice,  the  original  holder  of  goods  not  paid  for  has 
to  maintain  that  possession  of  them,  which  he  actually  holds  at  the  time  of 
the  demand  ? 

The  argument,  on  the  part  of  the  plaintiffs,  asserts  that  the  indorsement 
of  the  bill  of  lading  by  the  Turings  is  an  assignment  of  the  property  in  the 
goods  to  Freeman,  in  the  ?ame  manner  as  the  indorsement  of  a  bill  of 
exchange  is  an  assignment  of  the  debt:  that  Freeman  could  assign  over 
that  property,  and  that,  by  delivery  of  the  bill  of  lading  to  the  plaintiff' for  a 
valuable  consideration,  they  have  a  just  right  to  the  property  conveyed  by 
it,  not  affected  by  any  claim  of  the  Turings, of  which  they  had  no  notice. 
On  the  part  of  the  defendant  it  is  argued,  that  the  bill  of  lading  is  not  in  its 
nature  a  negotiable  instrument ;  that  it  more  resembles  a  chose  in  action  ; 
that  the  indorsement  of  it  is  not  an  assignment  that  conveys  any  interest, 
but  a  mere  authority  to  the  consignee  to  receive  the  goods  mentioned  in  the 
bill;  and,  therefore,  it  cannot  be  made  a  security  by  the  consignee  for 
money  advanced  to  him;  but  the  person  who  accepted  it  rriust  stand  in  the 
place  of  the  consignee,  and  cannot  gain  a  better  title  than  he  had  to  give. 
As  these  propositions  on  either  side  se^m  to  be  stated  too  loosely,  and  as  it 
is  of  great  importance  that  the  nature  of  an  instrument  so  frequent  in  com- 
merce as  a  bill  of  lading  should  be  clearly  defined,  I  think  it  necessary  to 
state  my  id«as  of  its  nature  and  effect : — 

A  bill. of  lading  is  the  written  evidence  of  a  contract  for  the  carriage  and 
delivery  of  goods  sent  by  sea  for  a  certain  freight.  The  contract  in  legal 
language  is  a  coitlract  of  bailm'erit ;  2  Lord  Raym.  912.  In  the  usual  form 
of  the  contract  the  undertaking  is  to  deliver  to  the  order  or  assigns  of  the 
shipper.  By  the  delivery  on  board,  the  ship-master  acquires  a  special 
pi^,„_-.  property  to  support  that  possession  which  "fhe  holds  in  the  right  of 
•  i-  J  another,  and- to  enable  him  to  perform  his  undertaking.  The. 
general  property  remains  with  the  shipper  of  the  goods  until  he  has 
disposed  of  it  by  some  act  sufficient  in  law  to  transfer  property.  The 
indorsement  of  the  bill  of  lading  is  simply  a  direction  of  the  delivery  of  the 
•goods.  When  this  indorsement  is  in  blank,  the  holder  of  the  bill  of  lading 
may  receive  the  goods,  and  his  receipt  will  discharge  the  ship-master;  but 


MASON     V.     LICKBARROW.  627 

the  holder  of  the  bill,  if  it  came  into  his  hands  casually,  without  any  just 
title,  can  acquire  no  property  in  the  goods.  A  special  indorsement  defines 
the  person  appointed  to  receive  the  goods  ;  his  receipt  or  order  would,  I 
conceive,  be  a  sufficient  discharge  to  the  ship-master  ;  and,  in  this  respect, 
I  hold  the  bill  of  lading  to  be  assignable.  But  what  is  it  that  the  indorse- 
ment of  the  bill  of  lading  assigns  to  the  holder  or  the  indorsee  ?  a  right  to 
receive  the  goods  and  to  discharge  the  ship-master,  as  having  performed 
his  undertaking.  If  any  further  effect  be  allowed  to  it,  the  possession  of  a 
bill  of  lading  would  have  greater  force  than  the  actual  possession  of  the 
goods.  Possession  of  goods  is  prima  facie  evidence  of  title;  but  that  pos- 
session may  be  precarious,  as  of  a  deposit ;  it  may  be  criminal,  as  of  a 
thing  stolen  ;  it  may  be  qualified,  as  of  things  in  the  custody  of  a  servant, 
carrier,  or  a  factor.  Mere  possession,  without  a  just  title, gives  no  property ; 
and  the  person  to  whom  such  possession  is  transferred  by  delivery,  must 
take  his  hazard  of  the  title  of  his  author.  The  indorsement  of  a  bill  of 
lading  differs  from  the  assignment  of  a  chose  in  action,  that  is  to  say,  of  an 
obligation,  as  much  as  debts  differ  from  effects.  Goods  in  pawn,  goods 
bought  before  delivery,  goods  in  a  warehouse,  or  on  ship-board,  may  all  be 
assigned.  The  order  to  deliver  is  an  assignment  of  the  thing  itself,  which 
ought  to  be  delivered  on  demand,  and  the  right  to  sue,  if  the  demand  is 
refused,  is  attached  to  the  thing.  The  case  in  1  Lord  Raym.  271  was  well 
determined  on  the  principal  point,  that  the  consignee  might  maintain  an 
action  for  the  goods,  because  he  had  either  a  special  property  in  them,  or  a 
right  of  action  on  the  contract :  artd  I  assent  to  the  dictum,  that  he  might 
assign  over  his  right.  But  the  question  remains,  What  right  passes  by  the 
first  indorsement,  or  by  the  assignment  of  it  ?  An  assignment  of  goods  in 
pawn,  or  of  goods  bought  but  not  delivered,  cannot  transmit  a  right  to  p*jrjf.-i 
*take  the  one  without  redemption,  and  the  other  without  the  payment  L  -^ 
of  the  price.  As  the  indorsement  of  a  bill  of  lading  is  an  aassignment 
of  the  goods  themselves,  it  differs  essentially  from  the  indorsement  of  a 
bill  of  exchange  ;  which  is  the  assignment  of  a  debt  due  to  the  payee,  and 
which,  by  the  custom  of  trade,  passes  the  whole  interest  in  the  debt  so 
completely,  that  the  holder  of  the  bill  for  a  valuable  consideration  without 
notice,  is  not  aff(?cted  even  by  the  crime .  of  the  person  from  whom  he 
received  the  bill. 

Bills  of  lading  differ  essentially  from  bills  of  exchange  iYi  another  respect. 

Bills  of  exchange  can  only  be  used  for  one  given,  purpose,  namely,  to 
extend  credit  by  a  speedy  transfer,  of  .the  debt,  which  one  person  owes 
another,- to  a  third  person.  Bills  of  lading  may  be  assigned  for  as  many 
different  purposes  as  goods  rriay  be  delivered.  They  may  be  indorsed  to 
the  true  owner  of  the  goods  by  the  freighter,  who  acts  nrierely  as  his 
servant.  They  may  be  indorsed  to  a  factor  to  sell  for  the  owner.  They 
may  be  indorsed  by  the  seller  of  the  goods  to  the.  buyer.  They  are  not 
drawn  in  any  certain  form.  They  sometimes  do  and  sometimes  do  j.iot 
express  on  whose  account  and  risk  the  goods  are  shipped.  They  often, 
especially  in  time  of  war,  express  a  false  account  and  risk.  They  seldorfi, 
if  ever,  bear  upon  the  face  of  them  any  indication  of  the  purpose  of  the 
indorsement.  To  such  an  instrument,  so  various  in  its  use,  it  seems 
impossible  to  apply  the  same  rules  as  govern  the  indorsement  of  bills  of 
exchange.     The  silence  of  all  authors  treating  of  commercial  law  is  a 


628  SMITH    S     LEADING     CASES. 

Strong  argument  that  no  general  usage  has  made  tliem  negotiable  as  bills. 
Some  evidence  appears  to  have   been  given  in  other  cases, (a)  that  the 
received  opinion  of  merchants  was  .against  their  being  so  negotiable.     And 
unless  there  was  a  clear,  established,  general  usage  to  place  the  assignment 
of  a  bill  of  lading  upon  the  same  footing  as  the  indorsement  of  a  bill  of 
exchange,  that  country  which  should  first  adopt  such  a  law  would  lose  its 
credit  with  the  rest  of  the  commercial  world.     For  the  immediate  conse- 
quence would  be  to  prefer  the  interest  of  the  resident  factors  and  their 
creditors,  to  the  fair  claims  of  the  foreign  consignor.     It  would  not  be  much 
less  pernicious  to  its  internal   commerce  :  for  every  case  of  this   nature  is 
-.  founded  in  a  breach  of  confidence,  always  attended  with  a  suspicion 
L         -I  *of  collusion,  and  leads  to  a  dangerous  and  false  credit,  at  the  hazard 
and  expense  of  the  fair  trader.     If  bills  of  lading  are  not  negotiable  as  bills 
of  exchange,  and  yet  are  assignable,  what  is  the  consequence  ?     That  the 
assignee  by  indorsement  must  inquire  under  what  title  the  bills  have  come 
to  the  hands  of  the  person  from  whom  he  takes  them.    Is  this  more  difficult 
than  to  inquire  into  the  title  by  which  goods  are  sold  or  assigned?     In  the 
case  of  Hartop  v.  Hoare,  2  Str.   1187,  1  Wils.  8,  jewels  deposited  with  a 
goldsmith  were  pawned  by  him  at  a  banker's.     Was  there  any  imputation, 
even  of  neglect,  in  a  banker  trusting  to  the  apparent  possession  of  jewels 
by  a  goldsmith?     Yet  they  were  the  property  of  another,  and  the  banker 
suffered  the  loss.     It  is  received  law,  that  a  factor  may  sell,  but  cannot 
pawn  the  goods  of  his  consignor.     Patterson  v.  Tash,  2  Sir.   1178.     The 
person,  therefore,  who  took  ap  assignment  of  goods  from  a  factor  in  security, 
could  not  retain  them  against  the  claim  of  the  consignor;  and  yet,  in  this 
case,  the  factor  might  have  sold  them  and  embezzled  the  money.     It  has 
been  argued,  that  it  is  necessary  in  commerce  to  raise  mone)'-  on  goods  at 
sea,  and  this  can  only  be  done  by  assigning  the  bills  of  lading.     Is  it  then 
nothing,  that  an  assignee  of  a  bill  of  lading  gains  by  the  indorsement  ?    He 
has  all  the  right  the  indorser  could  give  him;  a  title  to  the  possession  of  the 
goods  when  they  arrive,     tie  has  a  safe  security,  if  he  has  dealt  with  an 
honest  man.    And  it  seems  as  if  it  could  be  of  little  utility  to  trade,  to  extend 
credit  by  affording  a  facility  to  raise  money  by  unfair  dealing.    Money  will 
be  raised  on  goods  at  sea,  though  bills  of  lading  sliould  not  be  negotiable,  in 
every  case  where  there  is  a  fair  ground  of  credit:  but  a  man  of  doubtful 
character  will  not  find  it  so  easy  to  raise  money  at  the  risk  of  others. 

The  conclusion  which  follows  from  this  reasoning,  if  it  be  just,  are — 1st. 
That  an  order  to  direct  the  delivery  of  goods  indorsed  on  a  bill  of  lading  is 
not  equivalent,  nor  even  analogous,  to  tbe  assignment  of  an  order  to  pay 
money  by  the  indorsement  of  a  bill  of  exchange.  2ndly.  That  the  negotia- 
bility of  bills,  and  promissory  notes,  is  founded  on  the  custom  of  merchants, 
and  positive  law;  but,  as  there  is  no  positivelaw,  neither  can  any  custom 
of  merchants  apply  to  such  an  instrument  as. a  bill  of  lading.  3rdl3^  That 
r*4fts1  ^^  ^^'  th^^'^fore,  not  negotiable  as  a  bill,  but  assignable ;  and  *passes 
L         J  such  right,  and  no  better,  as  the  person  assigning  had  in  it. 

This  last  proposition  I  confirm  by  the  consideration,  that  actual  delivery 
of  the  goods  does  not  of  itself  transfer  an  absolute  ownership  in  them,  with- 
out a  title  of  property  ;  and  that  the  indorsement  of  a  bill  of  lading,  as  it  can- 

(fl)  Fnee  v.  Prescot,  1  Atk.  245  ;  Fearon  v.  Bowers,  post. 


MASON    V.     LICK  BARROW.  629 

not  in  any  case  transfer  more  right  than  the  actual  delivery,  cannot  in  every 
case  pass  the  property  ;  and  I  therefore  infer,  that  the  mere  indorsement 
can  in  no  case  convey  an  absolute  property.  It  may,  however,  be  said,  that 
admitting  an  indorsement  of  a  bill  of  lading  does  not  in  all  cases  import  a 
transfer  of  the  property  of  the  goods  consigned,  yet  where  the  goods,  when 
delivered,  would  belong  to  the  indorsee  of  the  bill,  and  the  indorsement 
accompanies  a  title  of  property,  it  ought  in-law  to  bind  the  consignor,  at 
least  with  respect  to  the  interest  of  third  parties.  This  argument  has,  I 
confess,  a  very  specious  appearance.  The  whole  difficulty  of  the  case  rests 
upon  it ;  and  I  am  not  surprised  at  the  impression  it  has  made,  having  long 
felt  the  force  of  it  myself.  A  fair  trader,  it  is  said,  is  deceived  by  the  mis- 
placed confidence  of  the-consignor.  •  The  purchaser  sees  a  title  to  the  deli- 
very of  the  goods 'placed  in  the  hands  of  a  man  who  offers  them  to  sale. 
Goods  not  arrived- are  every  day  sold  without  any  suspicion  of  distress,  on 
speculations  of  the  fairest  nature.  The  purchaser  places  no  credit  in  the 
consignee,  but  in  the  indorsement  produced  to  him,  which  is  the  act  of  the 
consignor.  The  first  consideration  which  affects  this  argument  is,  that  it 
proves  too  much,  and  is  inconsistent  with  the  admission.  But  let  us  exa- 
mine what  the  legal  right  of  the  vendor  is,  and  whether,  with  respect  to  him, 
the  assignee  of  a  bill  of  lading  stands  on  a  better  ground  than  the  consignee 
from  whom  he  received  it.  I  state  it  to  be  a  clear  proposition,  that  the  ven- 
dor of  goods  not  paid  for  may  retain  the  possession  against  the  vendee ;  not 
by  aid  of  any  equity,  but  on  grounds  of  law.  Our  oldest  books(a)  consider 
the  payment  of  the  price  (day  not  being  given)  as  a  condition  precedent 
implied  in  the  contract  of  sale  ;  and  that  the  vendee  cannot  take  the  goods, 
nor  sue  for  them,  without  tender  of  the  price.  If  day  had  been  given  for 
payment,  and  the  vendee  could  support  an  action  of  trover  against  the  ven- 
dor, the  price  unpaid  must  be  deducted  from  the  damages,  in  the  same 
manner  as  if  he  *had  brought  an  action  on  the  contract,  for  the  non-  ;;;  .^q-. 
delivery.  Snee  v.  Prescot,  1  Atk.  245.  The  sale  is  not  executed  L  J 
before  delivery :  and  in  the  simplicity  of  former  times,  a  delivery  into  the 
actual  possession  of  the  vendee  or  his  servant  was  always  supposed.  In  the 
variety  and  extent  of  dealing  which  the  increase  of  commerce  has  introduc- 
ed, the  delivery  may  be  presumed  from  circumstances,  so  as  to  vest  a  pro- 
perly in  the  vendee.  A  destination  of  the  goods  by  the  vendor  to  the  use 
of  the  vendee  ;  the  marking  them,  or  making  them  up  to  be  delivered  ;  the 
removing  them  for  the  purpose  of  being  delivered,  may  all  entitle  the  ven- 
dee to  act  as  owner,  to  assign,  and  to  maintain  an  action  against  a  third 
person,  into  whose  hands  .they  have  conie.  But  the  title  of  the  vendor  is 
never  entirely  divested,  till  the  goods  have  come  into  the  possession  of  the 
vendee.  He  has  therefore  a  complete^  right,  for  just  cause,  to  retract  the 
intended  delivery,  and  to  stop  the  goods  in  transitu.  The  cases  determined 
in  our  courts  of  law  have  confirmed  this  doctrine,  and  the  same  law  obtains 
in  other  countries. 

•  In  an  action  tried  before  me  at  Guildhall,  after  the  last  Trinity  Term,  it 
appeared  in  evidence,  that  one  Bowering  had  bought  a  cask  of  indigo  of 
Verrulez  (S;  Co.,  at  Amsterdam,  which  was  sent  from  the  warehouse  of  the 
seller,  and  shipped  on  board  a  vessel  commanded  by  one  TuUoh,  by  the 

(a)  See  Hob.  41,  and  the  year-book  there  cited. 


630  smith's  leading  cases. 

appointment  of  Bowering.  The  bills  of  lading  were  made  out,  and  signed 
by  Tulloh,  to  deliver  to  Bowerino;  or  order,  who  immediately  indorsed  one 
of  them  to  his  correspondent  in  London,  and  sent  it  by  the  post.  Verrulez 
having  information  of  Bowering's  insolvency  before  the  ship  sailed  from  the 
Texel,  summoned  Tulloh  the  ship-master  before  the  court  at  Amsterdam, 
who  ordered  him  to  sign  other  bills  of  lading,  to  the  order  of  Verrulez.  Upon 
the  arrival  of  the  ship  in  London,  the  ship-master  delivered  the  goods, 
according  to  the  last  bills,  to  the  order  of  Verrulez.  This  case,  as  to  the 
practice  of  merchants,  deserves  particular  attention,  for  the  judges  of  the 
court  at  Amsterdam  are  merchants,  of  the  most  extensive  dealings,  and 
they  are  assisted  by  very  eminent  lawyers.  The  cases  in  pur  law,  which 
I  have  taken  some  pains  to  collect  and  examine,  are  very  clear  upon  this 
point.  Snee  v.  Prescot,  though  in  a  court  of  equity,  is  professedly  deter- 
mined on  legal  grounds  by  Lord  Hardwicke,  who  was  well  versed  in 
-.  the  principles  of  *law;  and  it  is  an  authority,  not  only  in  sup- 
L  J  port  of  the  right  of  the  owner  unpaid  to  retain  against  the  con- 
signee, but  against  those  claiming  under  the  consignee  by  assignment 
for  valuable  consideration  and  without  notice.  But  the  case  of  Fearon 
V.  Bowers, («)  tried  before  Lord  Chief  Justice  Lee,  is  a  case  at  law,  and 

(o)  Fearon  v.  Bowers,  Guildhall,  March  28,  1753,  coram  Lee,  C.  J, 

Detinue  against  the  master  or  captain  of  a  ship.  On  the  general  issue  pleaded,  the  case 
appeared  to  he,  that  one  Hall,  of  Salisbnr)',  had  written  to  Askeil  &.  Co.,  merchants  at 
Malaga,  to  send  him  20  butts  of  olive  oil,  which  Askeil  accordingly  bought,  and  shipped 
on  board  tlie  ship  Tavistock,  of  which  the  defendant  was  commander,  who  signed  three 
bills  of  lading  acknowledging  the  receipt  of  the  goods,  to  be  delivered  to  the  order  of  the 
shipper.  In  the  bills  was  the  usual  clause ;  that  one  being  performed,  the  other  two  should 
be  void. 

The  goods  being  thus  shipped,  Askeil  sent  an  invoice  thereof,  and  also  one  of  the  bills 
of  lading,  to  Hall,  indorsed  by  Askeil,  to  deliver  the  contents  to  Hall ;  and  Askeil  at  the 
same  time  sent  to  Jones,  his  partner  in  England,  a  bill  of  exchange  drawn  on  Hall  for 
the  amomit  of  the  price  of  the  oil  ;  ajid  alsoanotiicr  of  the  bills  of  lading  indorsed  bj'  Askeil 
to  deliver  the  contents  to  Jones.  -  The  bill  of  Exchange  was  presented  to  Hall,  but  not 
being  paid  by  him  it  was  returned  protested  ;  whereupon  Jones,  on  the  1st  of  September, 
1752,  (a  day  or  two  after  the  ship  arrived)  applied  to  the  defendant  to  deliver  the  oils  to 
him,  and  having  produced  his  bill  of  laxling,  the  defendant  promised  to  deliver  them  ac- 
cordingly'. But  the  ship  not  being  reported  at  the  customhouse;  the  oils  could  not  be 
then  delivered;  and  before  they  were  delivered,  the  plaintiff,  on  the  3rd  of  September,  pro- 
duced the  bill  of  lading  sent  to  Hall,  with  an  indorsement  thereon  by  Hall  to  deliver  the 
contents  to  the  plaintiti',  and  also  the  invoice,  upon  the  credit  of  which  he  had  advanced  to 
Hall  200/. — Notwithstanding  this,  the  defendant  afterwards  delivered  the  oils  to  Jones, 
and  took  his  receipt  for  them  on  the  back  of  the  bill  of  lading. 

For  the  plaintiff  it  was  contended,  that  the  bill  of  lading. indorsed  to  Hall,  and  by  him 
to  the  plaintiff,  had  fixed  the  properly  of  the  goods  in  the  plaintiff.  That  the  consignee  of 
a  bill  of  lading  has  such  a  property  that  he  may  a.ssign  it  over  ;  Evans  v.  Martlett,  I  Lord 
Rayni.  271.  There  it  is  laid  down,  if  goods  are  by  bill  of  lading  consigned  to  A.,  A.  is  the 
owner,  and  must  bring  the  action  against  the  master  of  the  ship  if  they  are  lost:  but  if 
the  bill  be  special  to  deliver  to  A.  for  the  use  of  B.,  B.  ought  to  bring  the  action  ;  but  if 
the  bill  be  general,  and  the  invoice  only  shews  thcv  are  upon  the  account  of  B.,  A.  ought  to 
bring  the  action,  for  the  property  is  in  him,  and  B.  has  only  a  trust;  per  totam  curiam. 
Holt,  C  J.,  said  the  consignee  of  a  bill  of  lading  has  such  a  property  that  he  may  assign 
it  over  ;  andShower  said,  it  had  been  adjudged  so  in  the  Exchequer.  It  has  been  further 
insisted,  that  the  plaintiff  had  advanced  the  200L  on  the  credit  of  the  bill  of  lading,  in  the 
course  of  trade,  and  no  objection  was  made  that  the  oils  had  not  been  paid  for  ;  for  that 
would  prove  too  much,  namely,  that  the  bill  of  lading  was  not  negotiable.  And  the 
indorsement  was  compared  to  the  indorsement  of  a  biU  of  exchange,  which  is  good,  though 
the  bill  originally  was  obtained  by  fraud.  Merchants  were  examined  on  both  sides,  and 
seemed  to  agree  that  the  indorsement  of  a  bill  of  lading  vests  the  property;  but  that  the 
original  consignor,  if  not  paid  for  the  goods,  had  a  right,  by  any  means  that  he  could,  to 
stop  their  coming  to  the  hands  of  the  consignee  till  paid  for.    One  of  the  witnesses  said, 


MASON     V.LICKBARROW.  631 

it  is  to  the  same  effect  as  Snee  v.  Prescot.  So  also  is  the  case  of  the 
Assignees  of  Burghall  v.  Howard, (6)  before  Lord  Mansfield.  The  right 
of  the  consignor  to  stop  the  goods  is  here  considered  as  a  legal  right.  It  will 
make  no  difference  in  th^  case  whether  the  right  is  considered  as  springing 
from  the  original  property  not  yet  transferred  by  delivery,  or  as  a  right  to 
retain  the  things  as  a  pledge  for  the  price  unpaid.  In  all  the  cases  cited  in 
the  course  of  the  argument,  the  right  of  the  consignor  to  stop  the  goods  is 
admitted  as  against  the  consignee.  But  it  is  contended  that  the  right  ceases 
us  against  a  person  claiming  under  the  consignee  for  a  valuable  considera- 
tion, and  without  notice  that  the  price  is  unpaid.  To  support  this  position, 
it  is  necessary  to  maintain  that  the  right  of  the  consignor  is  not  a  perfect 
legal  right  in  the  thing  itself,  but  that  it  'is  only  founded  upon  a  personal 
exception  fo  the  consignee,  which  would  preclude  his  demand  as  contrary 
to  good  faith,  and  unconscionable.  If  the  consignor  had  no  legal  title,  th-e 
question  between  him  and  the  bona  fide  purchaser  from  the  consignee  would 
turn' on  very  nice  considerations  of  equity.  Bat  a  legal  lien,  as  well  as  a 
right  of  property,  precludes  these  considerations  ;  and  the  admitted  right 
of  the  consignor  to  stop  the  goods  in  transitu  as  against  the  consignee,  can 
only  rest  upon  his  original  title  as  owner,  not  divested,  or  upon  a  legal  title  to 
hold  possession  of  the  goods  till  the  :pt\ce  is  paid,  as  a  pledge  for  the  price. 
It  has  been  asserted  in  the  course  of  the  argument,  that  the  tight  of.  the 
"consignor  has  by  judicial  determinations  been  treated  as  a  mere  equitable 

he  had  a  like  case  before  the  Chancellor,  who  upon  that  occasion  said,  he  thought  the 
consignor  had  a  riglit  to  get  the  goods  in  such  a  case  back  into  his  hands  in  any  way,  so 
as  he  did  not  steal  them. 

It  also  appeared  by  the  evidence  of  merchants  and  captains  of  ships,  that  the  usage  was, 
where  three  bills  of  lading  were  signed  by  the  captain,  and  indorsed  to  different  persons, 
the  -captain  had  a  right  to  deliver  the  goods  to  whichever  he  tliought  proper ;  and  he  was 
discharged  by  a  delivery  to  either  with  a  receipt  on  the  bill  of  lading,  and  was  not  obliged 
to  look  into  the  invoice  or  consider  the  merits  of  the  different  claims. 

Lee,  C.  J.,  in  summing  up  the  evidence,  said  that,  to  be  sure,  nakedly  considered,  a  bill 
of  lading  transfers  the  property,  and  a  right  to  assign  tliat  property  by  indorsement;  that 
the  invoice  strengthens  that  right  by  showing  a  farthci  intention  to  transfer  the  property. 
But  it  appeared  in  this  case,  that  Jones  had  the  other  bill  of  lading  to  be  as  a  curb  on  Hall, 
who  in  fact  had  never  paid  for  the  gootls.  And  it  appeared  by  the  evidence,  that  according 
to  the  usage  of  trade,  the  captain  was  not  concerned  to  examine  who  had  the  best  right  on 
the  different  bills  of  lading.  All  he  had  to  do  was  to  deliver  the  goods  upon  one  of  the 
bills  of  lading,  which  was  done.  The  jury  therefore  were  directed  by  the  Chief  Justice 
to  find  a  verdict  for  the  defendant,  which  they  accordingly  did. 

(b)  Assignees  of  Burghall,  a  bankrupt,  v.  Howard. 

At  Guildhall  sittingsafler  Hil.  33  Geo.  2,  coram  Lord  Mansfield. 

One  Burghall  at  London  gave  an  order  to  Bromley  at  Liverpool  to  send  him  a  quantity 
of  cheese,  Bromley  accordingly  shipped'  a  ton  of  cheese  on  board  a  ship  there,  whereof 
Howard,  the  defendant  *was  master,  who  signed  a  bill  of  lading  to  deliver  itrjit^iii 
in  good  condition  to  Burghall  in  London.  The  ship  arrived  in  the  Thames,  but  '• 
Burghall  having  become  a  bankrupt,  the  defendant  was  ordered,  on  behalf  of  Bromley, 
not  to  deliver  the  goods,  and  accordingly  refused,  though  the  freight  was  tendered.  It 
appeared  by  tJie  plaiatiff''s  witnesses  that  no  particular  ship  was  mentioned  whereby 
the  cheese  should  be  sent,  in  which  case  the  shipper  was  to  be  at  the  risk  of  the  perils  of 
the  seas.  The  action  was  on  the  case  upon  the  custom  of  the  realm  against  the  defendant 
as  a  carrier. 

Lord  Mansficid  was  of  opinion  that  the  plaintiffs  had  no  foundation  to  rcover  ;  and  said, 
he  had  known  it  several  times  ruled  in  Chancery,  that  wliere  the  consignee  becomes  a 
bankrupt,  and  no  part  of  the  price  had  been  paid,  that  it  was  lawful  for  the  consignor  to 
seize  the  goods  before  they  came  to  the  hands  of  the  consignee  or  his  assignees ;  and  that 
this  was  ruled,  not  upon  principles  of  equity  only,  hut  the  laws  of  property. 

The  plaintiffs  were  nonsuited. 


633  smith's   leading  cases. 

claim  in  cases  between  him  and  the  consignee.     To  examine  the  force  0/ 
this  assertion,  it  is  necessary  to  take  a  review  of  the  several  determinations. 
The  first  is  the  case  of  Wright  v.  Campbell,  4  l^urr.  2016,  on  which  the 
chief  stress  is  laid.     The  first  observation  that  occurs  upon  that  case  is,  that 
nothing  was  determined  by  it.   A  case  was  reserved  by  the  judge  at  nisi  prius, 
r*4l2l  °"  ^^^  *argument  of  which  the  court  thought  the  facts  imperfectly 
L         -'  stated,  and  directed  a  new  trial.    That  case  cannot  therefore  be  urged 
as  a  decision  upon  the  point.    But  it  is  quoted  as  containing  in  the  report  of 
it  an  opinion  of  Lord  Mansfield,  that  the  right  of  the  consignor  to  stop  the 
goods  cannot  be  set  up  against  a  third   person  claiming  under  an  indorse- 
ment for  value  and  without  notice.     The  authority  of  such   an   opinion, 
though  no  decision  had  followed  ifpon  it,  would   deservedly  be  very  great, 
from  the  high  respect  due  to  the  experience  and  wisdom  of  so  great  a  judge. 
But  I  am  not  able  to  discover. that  his  opinion  was  delivered  to  that  extent, 
and  I  assent  to  the  opinion  as  it  was  delivered,  and  very  correctly  applied 
to  the  case  then  in  question.     Lord  Mansfield  is  there  speaking  of  the  con- 
signment of  goods  to  a  factor,  to  sell  for  the  owner ;  and   he  very  truly 
observes,  1st,  that  as  against  the  factor,  the  owner  may  retain  the  goods  ; 
2ndly,  that  a  person  into  whose  hands Ihe  factor  has  j)assed  the  consignment 
with  notice,  is  exactly  in  the  same  situation  with  the -factor  himself;  3rdly, 
that  a  bona  fide  purchaser  from  the  factor  shall  have  a  right  to  the  delivery 
of  the  goods,  because  they  were  sold  bona  fide,  and  by  the  owner's  own 
authority.     If  the  owner  of  the  goods  entrust  another  to  sell  them  for  him, 
and  to  receive  the   price,   there  is  no  doubt   that  he  has  bound  himself  to 
deliver  the  goods  to  the  purchaser;  and   that  would  hold  equally,  if  the 
goods  had  never  been  removed  from  his  warehouse.     The  question  on  the 
right  of  the   consignor  to  stop  and    retain   the   goods,   can  never  occur 
where  the  factor  has  acted  strictly  according  to  the  orders  of  his  principal, 
and  where,  consequently,  he  has  bound  him  by  his  contract.     There  would 
be  no  possible  ground  for  argument  in  the  case  now  before  the  court,  if  the 
plaintiffs  in  the  action  could  maintain,  that  Turings&Co.  had  sold  to  them 
by  the  intervention  of  Freeman,  and  were  therefore   bound  ex  contractu  to 
deliver  the  goods.     Lord   Mansfield's  opinion  upon  the  direct  question  of 
the  right  of  the  consignor  to  stop  the  goods  against  a  third  party,  who  has 
obtained  an  indorsement  of  the  bill  of  lading,  is  quoted  in. favour  of  the, con- 
signor, as  delivered  in  two  cases  at  nisi  prius  ;(«)  Savignac  v.  Cuff"  in  1778, 
and(6)  Stokes  v.  La  Riviere   in  1785.     Observations  are  made  on  these 
caseSjthat  they  were  governed  by  particular  circumstances  ;  and  undoubt- 
r*41^1  ^^^y^  when  there  is  not  an  ^accurate  and.agreed  state  of  them,  no 
L         -■  great  stress  can  be  laid  on  the  authority.     The  case(c)  of  Caldwell 
V.  Ball  is  improperly  quoted  on    the  part  of  the  plainlifl^s  in  the  action, 
because  the  question  there  was  on  the   priority  of  consignments,  and  the 
right  of  the  consignor  did  not  come  under  consideration.     The  case  of(rf) 
Hibbert  v.  Carter  was  also  cited  on  the  same  side,  not  as  having  decided 
any  question  upon  the  consignor's  right  to  stop  the  goods,  but  as  establish- 
ing a  position,  that  by  the  indorsement  of  the  bill  of  lading,  the  property  was 
so  completely  transferred  to  the  indorsee,  that  the  shipper  of  the  goods  had 

(a)  Ante,  p.  391.  (6)  Ante,  p.  400. 

(c)  1  Term  Rep.  B.  R.  205.  (rf)  1  Term  Rep,  B.  R.  745. 


MASON    V.     LICKBARROW.  633 

no  longer  an  insurable  interest  in  thenn.  The  bill  of  lading  in  that  case  had 
been  indorsed  to  a  creditor  of  the  shipper  ;  and,  undoubtedly,  if  the  fact  had 
been  as  it  was  at  first  supposed,  that  the  cargo  had  been  accepted  in  pay- 
ment of  the  debt,  the  conclusion  would  have  been  just ;  for  the  property  of 
the  goods,  and  the  risk,  would  have  completely  passed  from  the  shipper  to 
indorsee;  it  would  have  amounted  to  a  sale  executed  for  a  consideration 
paid.  But  it  is  not  to  be  inferred  from  that  case,  that  an  indorsement  of  a 
bill  of  lading,  the  goods  remaining  at  the  risk  of  the  shipper,  transfers  the 
property  so  that  a  policy  of  insurance  upon  them  in  his  name  would  be 
void.  The  greater  part  of  the  consignments  from  the  West  Indies,  and  all 
countries  where  the  balance  of  trade  is  in  favour  of  England,  are  made  to  a 
creditor  of  the  shipper;  but  they  are  no  tiischarge  of  the  debt  by  indorse- 
ment of  the  bill  of  lading  :  the  expense  of  insurance,  freight,  duties, 
are  all  charged  to  the  shipper,  and  the  net  proceeds  alone  can  be  applied 
to  the  discharge  of  his  debt.  That  case,  therefore,  has  no  application  to 
the  present  question.  And  from  all  the  cases  that  have  been  collected,  it 
does  not  appear  that  there  has  ever  been  a  decision  against  the  legal  right 
of  the  consignor  to  stop  the  goods  in  transitu,  before  the  case  now  brought 
before  this  court.  When  a  point  in  law  which  is  of  general  concern  in  the 
daily  business  of  the  world  is  directly  decided,  the  event  of  it  fixes  the  pub- 
lic attention,  directs  the  opinion,  and  regulates  the  practice  of  those  whoare 
interested.  But  where  no  such  decision  has  in  fact  occurred,  it  is  impossi- 
ble to  fix  any  standard  of  opinion,  upon  loose  reports  of  incidental  argu- 
ments. The  rule,  therefore,  which  the  court  is  to  lay  down  in  this  case, 
will  have  the  effect,  not  to  disturb,  but  to  *settle,  the  notions  of  the  ^^.^,4-1 
commercial  part  of  this  countryman  a  point  of  very  great  importance,  L  J 
as  it  regards  the  security  and  good  faith  of  their  transactions.  For  these 
reasons,  we  think  the  judgment  of  the  Court  of  King's  Bench  ought  to  be 
reversed. 


The  following  account  of  the  further  proceedings  in  this  case  is  given 
by  Mr.  East,  in  a  note  to  his  Reports,  vol.  2, p.  19  : — 

This  case  first  came  on  upon  a  demurrer  to  evidence,  on  which  there 
was  judgment  for  the  plaintiff;  this  court  holding,  that  though  the  vendor 
of  goods  might,  as  between  himself  and  the  vendee,  stop  them  in  transitu  to 
the  latter,  in  case  of  his  insolvency,  not  having  paid  for  them;  yet  that  if 
the  vendee,  having  in  his  possession  the  bill  of  lading  indorsed  in  blank. by 
the  vendor,  before  such  stopping  in  transitu,  indorse  and  deliver  it  to  a  third 
person  for  a  valuable  consideration  and  without  notice  of  the  non-payment, 
the  right  of  the  vendor  to  stop  in  transitu  is  thereby  divested  as  against  such 
bona  fide  holder  of  the  bill.  This  judgment  was  reversed  upon  a  writ  of 
error  in  the  Exchequer  Chamber  ;  where  it  was  considered  that  a  bill  of 
lading  was  not  a  negotiable  instrument,  the  indorsement  of  which  passed  the 
property  proprio  vigore,  like  the  indorsement  of  a  bill  of  exchange  ;  though 
to  some  purposes  it  was  assignable  by  indorsement,  so  as  to  operate  as  a  dis- 
charge to  the  captain,  who  made  a  delivery  bona  fide  to  the  assignee.    1  H. 


634  smith's    LEADING     CASES. 

Black.  357.     The  latter  judgment  was  in  its  turn  reversed  in  the  House  of 
Lords  in  Tr.  33  Geo.  3,  and  a  venire  facias  de  novo  directed  to  be  awarded 
by  B.  R.  5  Term  Rep.  367,  and  2  H.  Black.  211.     The  ground  of  that 
reversal  was,  that  the  demurrer-  to  evidence  appeared  to  be  informal  on  the 
record  MS.     The  very  elaborate   opinion,  delivered  by  Mr.  Justice  Buller, 
upon  the  principal  question  before  the  house,  a  copy  of  which  he  afterwards 
permitted  me  to  take,  I  shall  here  subjoin,  as  it  contains  the  most  comprehen- 
sive view  of  the  whole  of  this  subject  which  is  anywhere  to  be  found.      A 
venire  facias  de  novo  having  been  accordingly  awarded  by  B.  R.,  a  special 
verdict^was  found  upon  the  second  trial,  containing  in  substance  the  same  facts 
as  before  ;  with  this  addition,  that  the  jury  found,  that  by  the  custom  of  mer- 
chants,  bills   of  lading   for  the- delivery  of  goods   to    the    order  of  the 
fe^.,_-|  *shipperor  his  assigns,  are,  after  the  shipment,  and  before  the  voyage 
*-         -^  performed,  negotiable  and'transferable  by  the  shipper's  indorsement, 
and  delivery,  or  transmitting  of  the  same  to  any  other  person  ;  and  that  by 
such  indorsement  and  delivery  or  transmission,  the  property  in  such  goods  is 
transferred  to  such  other  person.     And  that  by  the  custom  of  merchants, 
indorsements  of  bills  of  lading  in  blank  may  be  filled  up  by  the  person  to 
whom  they  are  so  delivered  or  transmitted,  with  words  ordering  the  delivery 
of  the  goods  to  be  made  to  such  person  i  and  according  to  the  practice  of 
merchants,  the  same,  when  filled   up,  have  the  same  operation  and  effect  as 
if  it  had  been  done  by  the  shipper.     On  this  special  verdict,  the  Court  of  B. 
R.,  understanding  that  the  case  was  to  be  carried  up  to  the  House  of  Lords, 
declined  entering  into  a  discussion  of  it;  merely  saying,  that  they  still 
retained  the  opinion  delivered  upon  the  former  case,  and  gave  judgment  for 
the  plaintiffs.     5  Term  Rep.  683. 


LICKBAUROW  AND  ANOTHER  V.  MASON   AND  OTHERS  IN  ERROR. — DOM.  PROC. 

1793. 

BuLLER,  J. — Before  I  consider  what  is  the  law  arising  on  this  case,  I  shall 
endeavour  to  ascertain  what  the  case  itself  is.  It  appears  that  the  two  bills 
of  lading  were  indorsed  in  blank  by  Turing,  and  sent  so  indorsed  in  the  same 
state  by  Freeman  to  the  plaintiffs,  in  ord^r  that  the  goods  might,  on  their 
arrival  at  Liverpool,  be  taken  possession  of,  and  sold  by  the  plaintiffs  on 
Freeman's  account,  t  shall  first  consider  what  is  the  effect  of  a  blank 
indorsement;  and,  secondly,  I  will  examine  whether  the  words,  "to  be  so 
sold  by  the  plaintiffs  on  Freeman's  account,"  make  any  difference  in  the 
case.  As  to  the  first,  I  am  of  opinion  that  a  blank  indorsement  has  precisely 
the  same  effect  that  an  indorsement  to  deliver  to  the  plaintiffs  would  have. 
In  the  case  of  bills  of  exchange,  the  effect  of  a  blank  indorsement  is  too  uni- 
versally known  to  be  doubted  ;  and,  therefore,  on  that  head  I  shall  only  men- 
tion the  case  of  Russell  v.  Langstaff:>,  Douglas,  496,  where  a  man  indorsed 
his  name  on  copper  plate  checks,  made  in  the  form  of  promissory  notes,  but 
in  blank,  i.  e.  without  any  sum,  date  or  time  of  payment :  and  the  court  held, 
r*4.i  fit  ^^^^  ^^^  indorsement  on  a  blank  note  is  a  letter  of  credit  for  an  *indefi- 
L  J  nite  sum  ;  and  the  defendant  was  liable  for  the  sum  afterwards 
inserted  in  the  note,  whatever  it  might  be.     In  the  case  of  bills  of  lading,  it 


Lie  KB  ARROW    V.    MASON.  635 

has  been  admitted  at  your  lordship's  bar,  and  was  so  in  the  Court  of  King's 
Bench,  that  a  blank  indorsement  has  the  same  effect  as  an  indorsement  filled 
up  to  deliver  to  a  particular  person  by  name.  In  the  case  of  Snee  v.  Prescot, 
Lord  Hardwicke  thought  that  there  was  a  distinction  between  a  bill  of  lading 
indorsed  in  blank,  and  one  that  was  filled  up  ;  and  upon  that  ground  part  of 
his  decree  was  founded.  But  that  I  conceive  to  be  a  clear  mistake.  And 
it  appears  from  the  dase  of  Savignac  v.  Cuff,  (of  which  case  I  know  nothing 
but  from  what  has  been  quoted  by  the  counsel,  and  that  case  having  occurred 
before  the  unfortunate  year  1780,(«)  no  further  account'  can  be  obtained,) 
that  though  Lord  Mansfield  at  first  thought  that  there  was  a  distinction 
between  bills  of  lading  indorsed  in  blank  and  otherwise,  yet  he  afterwards 
abandoned  that  ground.  Li  Solomons  v.  Nyssen,Mich.  1788,2  Term  Rep. 
674,  the  bill  of  lading  was  to^rder  or  assigns,  and  the  indorsement  in  blank  ; 
but  the  court  held  it  to  be  clear  that  the  property  passed.  He  who  delivers 
a  bill  of  lading  indorsed  in  blank  to  another,  not  only  puts  it  in  the  power  of 
the  person  to  whom  it  is  delivered,  but  gives  him  authority  to  fill  it  up  as  he 
pleases  ;  and  it  has  the  same  effect  as  if  it  were  filled  up  with  an  order  to 
deliver  to  him.  The  next  point  to  be  considered  is,  what  difference  do  the 
words,  "to  be  sold  by  the  plaintiffs  on  Freeman's  account,"  make  in  the  pre- 
sent case  ?  It  has  been  argued  that  they  prove  the  plaintiffs  to  be  factors 
only.  But  it  is  to  be  observed  that  these  words  are  not  found  in  the  bill  of 
lading  itself;  and,  therefore,  they  cannot  alter  the  nature  and  construction  of 
it.  I  say  they  were  not  in  the  bill  of  lading  itself  ;  for  it  is  expressly  stated 
that  the  bill  of  lading  was  sent  by  Freeman  in  the  same  state  in  which  it  was 
received,  and  in  that  there  is  no  restriction  or  qualification  whatever  ;  but  it 
appeared  by  some  other  evidence,  L suppose  by  some  letter  of  advice,  that 
the  goods  were  so  sent,  to  be  sold  by  the  plaintiffs  on  Freeman's  account. 
Supposing  that  the  plainlifl^  are  to  be  considered  as  factors,  yet  if  the  bill  of 
lading,  as  I  shall  coatend  presently,  passes  the  legal  property  in  the  goods, 
the  circumstance  of  the  plaintiffs  being  liable  to  render  an  account  to  Free- 
man for  those  goods,  *afterwards,  will  not  put  Turing  in  a  better  con-  r^j-,^-, 
dition  in  this  cause  ;  for  a  factor  has  not  only  a  right  to  keep  goods  L  -^ 
till  he  is  paid  all  that  he  has  advanced  or  expended  on  account  of  the  par- 
ticular goods,  but  also  till  he  is  paid  the  balance  of  his  general  account. j- 
The  truth  of  the  case,  as  I  consider  it,  is,  that  Freeman  transferred  the  legal 
property  of  the  goods  to  the  plaintiffs,  who  were  to  sell  them,  and  pay  them- 
selves the  520/.  advanced  in  bills  out  of  the  produce,  and  so  be  accountable 
to  Freeman  for  the  remainder,  if  there  were  any.  But  if  the  goods  had  not 
sold  for  so  much  as  510/.,  Freeman  would  still  have  remained  debtor  to  the 
plaintiffs  for  the  difference  ;  and  so  far  only  they  were  sold  on  Freeman's 
account.  But  I  hold  that  a  factor  who  has  the  legal  property  in  goods,  can 
never  have  that  property  taken  from  him,  liil  he  is  paid  the  uttermost  farthing 
which  is  due  to  him.      Kruger  v.  Wilcocks,  Ambl.  252. 

This  brings  me  to  the  two  great  questions  in  the  cause,  which  are  un- 
doubtedly of  as  much  importance  to  trade  as  any  questions  which  ever  can 

(a)  Lord  Mansfield's  papers  were  then  burnt,  together  with  his  house,  in  the  riots  of 
that  period. 

t  Ace.  Houghton  v.  Matthews,  3  B.  &  P.  488;  Mann  v.  Sliifner,  2  East,  539  ;  Hudsoa 
V.  Grainger,  5  B.  &  A.  27  ;   Drinkwater  v.  Goodwin,  Cowp.  251. 


63d  smith's   leading   cases. 

arise.  The  first  is,  whether  at  law  the  property  of  goods  at  sea  passes  by 
the  indorsement  of  a  bill  of  lading  ?  The  second,  whether  ihe  defendant,  who 
stands  in  the  place  of  the  original  owner,  had  a  rigbt  to  stop  the  goods  ia 
transitu  ?  And. as  to  the  first,  every  authority  which  can  be  adduced  from 
the  earliest  period  of  time  down  to  the  present  hour,  agree  that  at  law  the 
property  does  pass  as  absolutely  and  as  efiectually  as  if  the  goods  had  beea 
actually  delivered  into  the  hands  of  the  consignee.  In  1690  it  was  so  decided 
in  the  case  of  Wiseman  v.  Vandeput,  2  Vern.  203.  In  1697,  the  court 
determined  again  in  Evans  v,  Martlett,  that  the  property  passes  by  the 
bill  of  lading.  That  case  is  reported  in  1  Lord  Raym.  271,  and  in  12  Mod. 
156 ;  and  both  books  agree  in  the  points  decided.  Lord  Raymond  states 
it  to  be,  that  if  goods  by  a  bill  of  lading  are  consigned  to  A.,  A.  is  the  owner, 
and  must  bring  the  action  :  but  if  the  bill  be  special,  to  be  delivered  to  A., 
to  the  use  of  B.,  B.  ought  to  bring  the  action  :  but  if  the  bill  be  general  to 
A,,  and  the  invoice  only  shows  that  they  are  on  account  of  B.  (which  I 
take  to.be  the  present  case)  A.  ought  always  to  bring  the  action  ;  for  the 
property  is  in  him,  and  B..  has  only  a  trust.  And  Holt,  C.  J.,  says,  the 
consignee  of  a  bill  of  lading  has  such  a  property  as  that  he  may  assign  it 
r#41ftl  ^^^^'^  ^"^  Shower  said  it  had  been  so  adjudged  *in  the  Exchequer. 
L  -I  In  12  Mod.  it  is  said  that  the  court  held  that  the  invoice  signified 
nothing;  but  that  the  consignment  in  a  bill  of  lading  gives  the  property, 
except  where  it  is  for  the  account  of  another;  that  is,  where  on  the  face  of 
the  bill  it  imports  to  be  for  another.  In  Wright  v.  Campbell,  in  1767,  (4 
Burr.  2046.)  Lord  Mansfield  said,  "  If  the  goods  are  bona  fide  sold  by  the 
factor  at  sea  (as  they  may  be  where  no  other  delivery  can  be  given)  it  will 
be  good  notwithstanding  the  stat.  21  Jac.  1.  The  vendee  shall  hold  them 
by  virtue  of  the  bill  of  sale,  though  no  actual  possession  be  delivered  ;  and 
the  owner  can  never  dispute  with  the  vendee,  because  the  goods  were  sold 
bona  fide,  and  by  the  owner's  own  authority."  His  lordship  added  (though 
that  is  not  stated  in  the  printed  report)  that  the  doctrine  in  Lord  Raymond  was 
right,  that  the  property  of  goods  at  sea  was  transferable.  In  Fearon  v.  Bow- 
ers, in  1753,  Lord  Chief  Justice  Lee  held,  that  a  bill  of  lading  transferred  the 
property,  and  a  right  to  assign  that  properly  by  indorsement :  but  that  the 
captain  was  discharged  by  a  delivery  under  either  bill.  In  Snee  v.  Pres- 
cot,  in  1743,  (1  Atk.  245)  Lord  Hardwicke  says,  "  Where  a  factor,  by  the 
order  of  his  principal,  buys  goods  with  his  own  money,  and  makes  the  bill 
of  lading  absolutelj'-  in  the  principal's  name,  to  have  the  goods  delivered-to 
the  principal,  in  such  case  the  factor  cannot  conntermand  the  bill  of  lading; 
but  it  passes  the  property  of  the  goods  fully  and  irrevocably  to  the  princi- 
pal." Then  he  distinguishes  the  case  of  blank  indorsement,  in  which  he 
was  clearly  wrong.  He  admits,  too,  that  if  upon  a  bill  of  lading  between 
merchants  residing  in  different  countries,  the'  goods  be  shipped  and  con- 
signed to  the  iTrincipal  expressly  in  the  body  of  the  bill  of  lading,  that 
vests  the  property  in  the  consignee.  In  Caldwell  v.  Ball,  in  1786,  (1  Term 
Rep.  205,)  the  court  held  that  the  indorsement  of  the  bill  of  lading  was  an 
immediate  transfer  of  the  legal  interest  in  the  cargo.  In  Hibbert  v.  Carter, 
in  1787,  (1  Term  Rep.  745,J  tlie  court  held  again  that  the  indorsement  and 
delivery  of  the  bill  of  lading  to  a  creditor  prima  facie  conveyed  the  whole 
property  in  the  goods  from  the  time  of  its  delivery.  The  case  of  Godfrey 
V.  Furzo,  3  P.  Wm.  185,  was  quoted  on  behalf  of  the  defendant.     A  mer= 


LICKBARROW     V.     MASON.  637 

chant  at  Bilboa  sent  goods  fronfx  thence  to  B.,  a  merchant  in  London,  for  the 
use  of  B.,  and  drew  bills  on  B.  for  the  money.  The  goods  arrived  p^f^^Q-i 
in  *London  which  B.  received,  but  did  not  pay  the  money,  and  L  J 
died  insolvent.  The  merchant  beyond  sea  brought  his  bill  against  the  exe- 
cutors of  the  merchant  in  London,  praying  that  the  goods  might  be 
accounted  for  to  him,  and  insisting  that  he  had  a  lien  on  them  till  paid. 

Lord  Chancellor  says, — "  when  a  merchant  beyond  sea  consigns  goods 
to  a  merchant  in  London  on  account  of  the  latter,  .and  draws  bills  on  him 
for  such  goods,  though  the  money  be  not  paid,  yet  the  property  of  the 
goods  vests  in  the  merchant  in  London,  who  is  credited  for  them,  and  con- 
sequently they  are  liable  to  his  debts.     But  where  a  merchant  beyond  sea 
consigns  goods  to  a  factor  in  London,  who  receives  them,  the  factor  in  this 
case,  being  only  a  servant  or  agent  for  the  merchant  beyond  sea,  can  have 
no  property  in  such  goods,  neither  will  they,  be  affected  by  his  bankruptcy." 
The  whole  of  this  case  is  clear  law ;  but  it  makes  for  the  plaintiffs  and  not 
the  defendants.     The   first  point  is  this  very  case  ;  for  the  bill  of  lading 
here  is  generally  to  the  plaintiff's,  and  therefore  on  their  account ;  and  in 
such  case,  though  the  money  be  not  paid,  the  property  vests  in  the  con- 
signee.    And  this  is  so  laid  down  without  regard  to  the  question,  whether 
the  goods  were   received  by  the  consignee  or  not.     The  next  point  there 
stated  is,  what  is  the  law  in  the  case  of  a  pure  factor,  without  any  demand 
of  his  own  ?     Lord  King  says  he  would  have  no  property.     This  expres- 
sion is  used  as  between  consignor  and  consignee,  and  obviously  means  rro 
more  than  that,  in  the  case  put,  the  consignor  may  reclaim  the  property 
from  the  consignee.     The  reason  given  by  Lord   King  is,  because  in  this 
case  the  factor  is  only  a  servant  or  agent  for  the  merchant  beyond  sea.     I 
agree,  if  he  be  merely  a  servant  or  agent,  that  part  of  the  case  is  also  good 
law,  and  the  principal  may  retain  the  property.     But  then  it  remains  to  be 
proved  that  a  man  who  is  in  advance,  or  under  acceptances  on  account  of 
the  goods,  is  simply  and  merely  a  servant  or  agent ;  for  which  no  authority 
has  been,  or,  as  I  believe,  can  be,  produced.     Here  the  bills  were  drawn  by 
Freeman  upon  the  plaintiffs  upon  the  same  day,  and  at  the  same  time,  as 
he  sent  the  goods  to  them  ;  and  therefore  this  must,  by  fair  and  necessary 
intendment,  be  taken  to  be  one  entire  transaction ;  and  that  the  bills  were 
drawn  on  account  of  the  goods  unless  the  contrary  appear. — So  far  from  the 
*contrary  appearing  here,  when  it  was  thought  proper  to  allege  on  p^^ofk-j 
this  demurrer  that  the  price  of  the  goods  was  not  paid,  it  is  express-  L         -• 
ly  so  stated ;  for  the  demurrer  says,  that  the  price  of  the  goods  is  now  due 
to  Turing  and  son.     But  it  finds  that  the  other  bills  were  afterwards  paid 
by  the  plaintiffs ;  and  consequently  they  have  paid  for  the  goods  in  ques- 
tion.    As, between  the  principal  and  mere  factor,  who  has  neither  advanced 
nor  engaged- in  any  thing  for  his  principal,  the  principal  has  a  right  at  all 
times  to  take  back  his  goods  at  will:  whether  they  be  actually  in  the  fac- 
tor's possession,  or  only  on  their  passage,  makes  no  difference  ;  the  princi- 
pal may  countermand  his  order:  and  though  the  property  remain  in  the 
factor  till  such  countermand,  yet  from  that  moment  the  property  revests  in 
the  principal,  and  he  may  maintain  trover.     But  in  the  present  case  the 
plaintiffs  are  not  that  mere  agent  or  servant;  they  have  advanced  510/,, 
on  the  credit  of  those  goods,  which  at  a  rising  market  were  worth  only  557/. ;; 
and  they  have  beside,  as  I  conceive,  the  legal  property  in  the  goods  under 


638  smith's  leading  cases. 

the  bill  of  lading.     But  it  was  contended  at  the  bar,  that  the  property  never 
passed  out  of  Turing;  and  to  prove  it,  Hob.  41  was  cited.     In  answer  to 
this  I  must  beg  leave  to  say,  that  the  position  in  Hobart  does  not  apply  ; 
because  there  no  day  of  payment  was  given ;  it  was  a  bargain  for  ready 
money  ;  but  here  a  month  was  given  for  payment.     And  in  Noy's  xVIaxiras, 
87,  this  is  laid  down  ;  "  If  a  man  do  agree  for  a  price  of  wares,  he  may  not 
carry  them   away  before  he   hath  paid  for  them,  if  he  hath  not  a  day 
expressly  given  to  him  to  pay  for  them."     Thorpe  v.  Thorpe,  Rep.  temp. 
Holt,  96,  and  Brice  v.  James,  Rep.  t^mp.  Lord  Mansfield,  S.  P.     So  Dy. 
30  and  76.     And  in  Shep.  Touchst.  222,  it  is  laid  down,  that  "if  one  sell 
me  a  horse,  or  any  thing  for  money,  or  any  other  valuable  consideration, 
and  the  same  thing  is  to  be  delivered  to  me  at  a  day  certain,  and  by 
our  agreement  a  day  is  set  for  the  payment  of  the  money,  it  is  a  good 
bargain  and  sale  to  alter  the  property  thereof;  and  I  may  have  an  action  for 
the  thing,  and  the  seller  for  his  money."     Thus  stand  the  authorities  on 
the  point  of  legal  property ;  and  from  hence  it  appears  that  for  upwards  of 
a  hundred  years  past  it  has  been  the  universal  doctrine  of  Westminster-hall, 
that  by  a  bill  of  lading,  and  by  the  assignment  of  it,  the  legal  property  does 
^3i,.n-i-\  pass.     And  as  I  conceive,  there  is  no  judgment,  *nor  even  a  dictum 
L         -'if  properly  understood,  which  impeaches  this  long  string  of  cases. 
On  the  contrary,  if  any  argument  can  be  draAvn  by  analogy  from  older  cases 
on  the  vesting  of  properly,  they  all  tend  to  the  same  conclusion.     If  these 
cases  be  law,  and  if  the  legal  property  be  vested  in  the  plaintiffs,  that  as  it 
seems  to  me,  puts  a  total  end  to  the  present  case;  for  then  it  will  be  incum- 
bent on  the  defendants  to  show  that  they  have  superior  equity  which  bears 
down  the  letter  of  the  law ;  and  which  entitles   them  to  retain  the  goods 
against  the  legal  right  of  the  plaintiffs,  or  they  have  no  case  at  all.     I  find 
myself  justified  in  saying  that  the  legal  title,  if  in  the  plaintiff's,  must  decide 
this  cause  by  the  very  words  of  the  judgment  now  appealed  against ;  for  the 
noble  lord  who  pronounced  that  judgment,  emphatically  observed  in  it, 
«'  that  the  plaintiff's  claim  under  Freeman  ;  but  though  they  derive  a  title 
under   him,  they  do  not  represent  him,  so  as   to  be  answerable   for  his 
engagements;  nor , are  they  affected  by  any  notice  of  those  circumstances 
which  would  bar  the  claims  of  him  or  his  assignees."     This  doctrine,  to 
which  I  fully  subscribe,  seems  to  me  to  be  a  clear  answer  to  any  supposed 
lien  which  Turing  may  have  on  the  goods  in  question  for  the  original  pi:ice 
of  them. 

But  the  second  question  made  in  the  case  is,  that  however  the  legal  pro- 
perty be  decided,  the  defendants,  who  stand  in  the  place  of  the  original 
owner,  had  a  right  to  stop  the  goods  in  transitu,  arid  have  a  lien  for  the 
original  price  of  them.  Before  I  consider  the  authorities  applicable  to  this 
part  of  the  case,  I  will  beg  leave  to  make  a  few  observations  on  the  right  of 
stopping  goods  in  transitu,  and  on  the  nature  and  principle  of  liens.  1st, 
Neither  of  them  are  founded  on  property  ;  but  they  necessarily  suppose  the 
property  to  be  in  some  other  person,  and  not  in  him  who  sets  up  either  of 
these  rights.-j-  They  are  qualified  rights,  which  in  given  cases  may  be 
exercised  over  the  property  of  another  :  and  it  is  a  contradiction  in  terms  to 
say  a  man  has  a  lien  upon  his  own  goods,  or  right  to  stop  his  own  goods  in 

t  See  the  distinction  drawn  by  Layley,  J.,  between  the  right  of  possession  and  that  of 
property,  post,  432  ;  in  notis. 


LICKBARROW    V.    MASON.  039 

transitu.  If  the  goods  be  his,  he  has  a  right  to  the  possession  of  them 
whether  they  be  in  transitu  or  not  :  he  has  a  right  to  sell  or  dispose  of  them 
as  he  pleases,  without  the  option  of  any  other  person  :  but  he  who  has  a 
hen  only  on  goods,  has  no  right  so  to  do  ;  he  can  only  retain  them  till  the 
original  price  be  paid  :  and  therefore  *if  goods  are  sold  for  500/., 
and  by  a  change  of  the  market,  before  they  are  delivered,  they  [*422] 
become  next  day  worth  1000/.,  the  vendor  Jan  only  retain  them  till  the 
500/.  be  paid,  unless  the  bargain  be  absolutely  rescinded  by  the  vendee's 
refusmg  to  pay  the  500/.— 2ndly,  Leins  at  law  exist  only  in  cases  where 
the  party  entitled  to  them  has  the  possession  of  the  goods  :  and  if  he  once 
part  with  the  possession  after  the  lien  attaches,  the  lien  is  eone.f  3rdly 
The  right  of  stopping  in  transitu  is  founded  wholly  on  equitable  principles' 
which  have  been  adopted  in  courts  of  law ;  and  as  far  as  they  have  been 
adopted,  I  agree  they  will  bind  at  law  as  well  as  in  equity.  So  late  as 
the  year  1690,  this  right,  or  privilege,  or  whatever -it  may  be  called,  was 
unknown  to  the  law.  The  first  of  these  propositions  is  self-evident  and 
requires  no  argument  to  prove  it.  As  to  the  second,  which  respects  liens* 
It  IS  known  and  unquestionable  law,  that  if  a  carrier,  a  farrier,  a  tailor  or  an 
inn-keeper,  dehver  up  the  goods,  his  lien  is  gone.  So  also  is  the  case  of  a 
factor  as  to  the  particular  goods  :  but,  by  the  general  usage  of  trade  he  may 
retain  for  the  balance  of  his  account  all  goods  in  his  hands,  without  recrard 
to  the  time  when  or  on  what  account  he  received  them.  In  Snee  v  Pres- 
cot,  Lord  Hardwicke  says  that  which  not  only  applies  to  the  case  of  liens, 
but  to  the  right  of  stopping  goods  in  transitu  under  circumstances  similar  to 
the  case  in  judgment :  for  he  says,  where  goods  have  been  negotiated,  and 
sold  again,  there  it  would  be  mischievous  to  say  that  the  ven^dor  or  factor 
should  have  a  hen  upon  the  goods  for  the  price  :  for  then  no  dealer  would 
know  when  he  purchased  goods  safely.  So  in  Lempriere  v.  Pasley  (3 
Term  R  485,)  the  court  said  it  would  be  a  great  inconvenience  to  com- 
merce if  It  were  to  be  laid  down  as  law,  that  a  man  could  never  take  up 
money  upon  the  credit  of  goods  consigned  till  they  actually  arrived  in  port. 
Ihere  are  other  cases  which  in  my  judgment  apply  as  strongly  against  the 
right  ot  seizing  m  transitu  to  the  extent  contended  for  by  the  defendants* 
but  before  I  go  into  them,  with  your  lordships'  permission,  I  will  state 
shortly  the  facts  of  the  case  of  Snee  v.  Prescot,  with  a  few  more  observa- 
tions upon  It.  The  doctrine  of  stopping  in  transitu  owes  its  origin  to  courts 
of  equity  ;  and  it  is  very  material  to  observe  that  in  that  case,  as  well  as 
many  others  which  have  followed  it  at  law,  the  question  is  not  as  *the 
counsel  for  the  defendant  would  make  it,  whether  the  property  C*^'^^^ 
vested  under  the  bill  of  lading?  for  that  was  considered  as  beino-  dear  • 
but  whether,  on  the  insolvency  of  the  consignee,  who  had  not  paid  for  the 
goods,  the  consignor  could  countermand  the  consignment?  or,  in  other 
words,  divest  the  property  which  was  vested  in  the  consignee  ?  Snee  and 
Baxter,  assignees  of  John  Toilet  v.  Prescot  and  others,  1  Atk.  245.  Toilet, 
a  merchant  in  London  shipped  to  Raguenau  &  Co.,  his  factors  at  Leghorn, 
serges  to  sell,  and  to  buy  double  the  value  in  silks  ;  for  which  the  factors 
were  to  pay  half  in  ready  money  of  their  own,  which  Toilet  would  repay 
by  bills  drawn  on  him;     The  silks  were  bought  accordingly,  and  shipped 

+  See  Levy  v.  Barnard,  8  Taunt,  149. 


640  smith's  leading  cases. 

on  board  Dawson's  ship,  marked  T  ;  Dawson  signed  three  bills  of  lading, 
.  to  deliver  at  London  to  factors,  consignors,  or  their  order.  The  factors 
indorsed  one  bill  of  lading  in  blank,  and  sent  it  to  Toilet,  who  filled  up  the 
same  and  pawned  it.  The  bills  drawn  by  the  factors  on  Toilet  were  not 
paid,  and  Toilet  became  a  bankrupt.  The  factors  sent  another  bill  of  lading, 
properly  indorsed,  to  Prescot,  who  offered  to  pay  the  pawnee,  but  he 
refused  to  deliver  up  the  bill  of  lading ;  on  which  Prescot  got  possession  of 
the  goods  from  Dawson,  under  the  last  bill  of  lading.  The  assignees  of 
Toilet  brought  the  bill  to  redeem  by  paying  the  pawnee  out  of  the  money 
arising  by  sale,  and  to  have  the  rest  of  the  produce  paid  to  them:  and  that 
the  factors,  although  in  possession  of  the  goods,  should  be  considered  as 
general  creditors  only,  and  be  driven  to  come  in  under  the  commission. 
Decreed,  1st.  That  the  factors  should  be  paid  ;  2nd,  the  pawnees  ;  and  3rd, 
the  surplus  to  the  assignees.  The  decree  was  just  and  right  in  saying  that 
the  consignor,  who  never  had  been  paid  for  the  goods,  and  the  pawnees, 
who  had  advanced  money  upon  the  goods,  should  both  be  paid  out  of  the 
goods  before  the  consignee  or  his  assignees  should  derive  any  benefit  from' 
them.  That  was  the  whole  of  the  decree;  and  if  the  circumslance  of 
the  consignor's  interest  being  first  provided  for,  be  thought  to  have  any 
weight,  I  answer,  first : — That  such  provision  was  founded  on  what  is  now 
admitted  to  be  an  apparent  mistake  of  the  law,  in  supposing  that  there  was 
a  difference  between  a  full  and  a  blank  indorsement.  Lord  Hardwicke  con- 
sidered the  legal  property  in  that  case  to  remain  in  the  consignor,  and 
r*4.24.'l  *'^^*^refore,  gave  him  the  preference.  2nclly.  That  whatever  might 
•-  -'be  law,  the  mere  faot  of  the  consignor's  being  in  possession  was  a 
sufficient  reason  for  a  court  of  equity  to  say,  We  will  not  take  the  posses- 
sion from  you  till  you  have  been  paid  what  is  due  to  you  for  the  goods. 
Lord  Hardwicke  expressly  said — "this  court  will  not  say,  as  the  factors 
have  re-seized  the  goods,  that  they  shall  be  taken  out  of  their  hands  till 
payment  of  the  half-price  which  they  have  laid  down  upon  them.  He  who 
seeks  equity  must  do  equity  ;  and,  if  he  will  not,  he  must  not  expect  relief 
from  a  court  of  equity.  It  is  in  vain  for  a  man  to  say  in  that  court,  I  have 
the  law  with  me,  unless  he  will  show  that  he  has  equity  with  him  also.  If 
he  mean  to  rely  on  the  law  of  his  case,  he  must, go  to  a  court  of  law  ;  and 
so  a  court  of  equity  will  always  tell  him.  under  those  circumstances. "^  The 
case  of  Snee  v.  Prescot  is  miserably  reported  in  the  printed  book  :  and  it 
was  the  misfortune  of  Lord  Hardwicke,  and  of  the  public  in  general,  to 
have  many  of  his  determinations  published  in  an  incorrect  and  slovenly 
way  :  and,  perhaps,  even  he  himself,  by  being  very  diffuse,  has  laid  a 
foundation  for  doubts  which  otherwise  would  never  have  existed.  I  have 
quoted  that  case  from  a  MS.  note  taken,  as  I  collect,  by  Mr.  John  Cox, 
who'was  counsel  in  the  cause  ;  and  it  seems  to  me  that,  on  taking  the 
whole  of  the  case  together,  it  is  apparent,  that,  whatever  might  have 
been  said  on  the  law  of  the  case  in  a  most  elaborate  opinion,  Lord  Hard- 
wicke decided  on  the  equity  alone,  arising  out  of  all  the  particular  cir- 
cumstances of  it,  without  meaning  to  settle  the  principles  of  law  on  which 
the  present  case  depends.  In  one  part  of  his  judgment  he  says,  that  in 
strictness  of  law,  the  property  vested  in  Toilet,  at  the  time  of  the  purchase  : 
*«  but,  however  that  may  be,"  says  ho,  « this  court  will  not  compel  the  fac- 
tors to  deliver  the  goods  without  being  disbursed  what  they  have  laid  out," 


LICKBARROWV.     MASON.  641 

He  begins  by  saying,  "  the  demand  is  as  harsh  as  can  possibly  come  into  a 
court  of  equity."  And  in  another  part  of  his  judgment  he  says,  "  Suppose 
the  legal  property  in  these  goods  was  vested  in  the  bankrupt,  and  that  the 
assignees  had  recovered,  yet  this  court  would  not  suffer  them  to  take  out 
execution  for  the  whole  value,  but  would  oblige  them,  to  account."  But 
further,  as  to  the  right  of  seizing  or  stopping  the  goods  in  transitu,  I  hold, 
that  no  man  who  has  not  equity  on  his  side  *can  have  that  right.  I  pj^-.oc-i 
will  say  with  confidence,  that  no  case  or  authority  till  the  present  ^  -' 
judgment,  can  be  produced  to  show  that  he  has.  But,  on  the  other  hand, 
in  a  very  able  judgment  delivered  by  my  brother  Ashurst,.in'  the  case  of 
Lempriere  v.' Paisley,  in  1788,  2  Term  Rep.  485,  he-  laid  it  down  as  a  clear 
principle,  that,  as  between  a  person  who  has  an  equitable  lien,  and  a  third 
person  who  purchases  a  thing  for  a  valuable  consideration  and  without 
notice,  the  prior  equitable  lien  shall  not  overreach  the  title  of  the  vendee. 
This  is  founded  on  plain  and  obvious  reason:  for  he  who  has  bought  a 
thing  for  a  fair  and  valuable  consideration,  and  without  notice  of  any  right 
or  claim  by  any  other'. person,  instead  of  having  equity  against  him,  has 
equity  in  his  favour:  and  if  he  have  law  and  equity  both  with,  him,  he  can- 
not be  beat  by  a  man  who  has  equal  equity  only.  Again,  in  a  very  solemn 
opinion,  delivered  in  this  house  b)^  the  learned  and  respectable  judge, (/r^ 
who  has  often  had  the  honour  of  delivering  the  sentiments  of  the  judges  to 
your  lordships,  when  you  are  pleased  to  require  it,  so  lately  as  the  14th  of 
May,  .1790,  in  the  case  of  Kinloch  v.  Craig,  3  Term  Rep.  787,  it  .was  laid 
down  that  the  right  of  stopping  goods  in  transitu  never  occurred- but"  as 
between  vendor  and  vendee  ;  for  that  he  relied  on  the  case  of  Wright,  v. 
Campbell,  4  Burr.  2050.  .  Nothing  remains  in  order  to  make  that  case  a 
direct  and  conclusive  authority  for  the  present,  but  to  show  that' it  is  not  the 
case  of  vendor  and  vendee.  The  terms  vendor  and  vendee .  necessarily 
mean  the  two  parties  to  a  particular  contract :  those  who  deal  together,  arid 
between  whom  there  is  privity  in  the  disposition  of  things  about  which  we 
are  talking.  If  A.  sell  a  horse  to  B.,  and  afterwards  sell  him  to  C,  and  C. 
to  D.,  and  so  on  through  the  alphabet,  each  man  who  buys  the  horse  is  at 
the  time  of  buying  him  a  vendee  ;  but  it  would  be  strange  to  speak  of  A. 
and  D.  together  as  vendor  and  vendee,  for  A.  never  sold  to  D.,  nor  did  D. 
ever  buy  of  A.  These  terms  are  correlatives,  and  never  have  been  applied, 
nor  ever  can  be  applied,  in  any  other  sense  than  to  the  persons  who  bought 
and  sold  to  each  other.  The  defendants,  or  Turing,  in  whose  behalf  and 
under  whose  name  and  authority  they  have  acted,  never  sold  these  goods 
to  the  plaintiffs;  the  plaintiffs  never  were  the  vendees  of  either  of  them. 
Neither  do  the  plaintiffs,  (if  I  may  be  permitted  to  repeat  again  the  forci- 
ble words  of  *the  noble  judge  who  pronounced  the  judgment  in  r  j^^^p -i 
question,)  represent  Freeman  so  as  to  be  answerable  for  his  L  "^  -' 
engagements,  or  stand  affected  by  any  notice  of  those  circumstances 
which  would  bar  the  claim  of  Freeman  or  his  assignees.  These  reasons, 
which  I  could  not  have  expressed  with  equal  clearness,  without  recurring 
to  the  words  of  the  two  great  authorities  by  Avhom  they  were  used,  and  to 
whom  I  always  bow  with  reverence,  in  my  humble  judgment  put  an  end  to 
all  questions  about  the  right  of  seizing  in  transitu.     Two  other  cases  were 

(a)  Eyre,  then  Lord  C.  B. 
Vol.  I 41 


642  smith'sleadingcases. 

mentioned  at  the  bar  which  deserve  some  attention.     One  is  the  case  of  the 
assignees  of  Burghall  v.  Hovvard(fl)  before  Lord  Mansfield,  at  Guildhall,  in 
1759  ;  where  the  only  point  decided  by  Lord  Mansfield  was,  that  if  a  con- 
signee become  a  bankrupt,  and  no  part  of  the  price  of  the  goods  be  paid,  the 
consignor  may  seize  the  goods  before  they  come  to  the  hands  of  the  consig- 
nee or  his  assignees.     This  was  most  clearly  right ;  but  it  does  not  apply  to 
the  present  case  ;  for  when  he  made  use  of  the  word  assignees,  he  undoubt- 
edly meant  assignees  under  a  commission  of  bankruptcy,  like  those  who  were 
then  before  him,  and  not  persons  to  whom  the  consignee  sold  the  goods  ;  for 
in  that  case  it  is  stated  that  no  part  of  the  price  of  the  goods  was  paid.     The 
whole  cause  turns  upon  this  point.     In  that  case  no  part  of  the  price  of  the 
goods  was  paid,  and  therefore  the  original  owner  might  seize  the   goods. 
But  in  this  case  the  plaintiffs  had  paid  the  price  of  the  goods,  or  were  un- 
der acceptances  for  them,  which  is  the  same  thing;    and  therefore  the 
original  owner  could  not  seize  them  again.     But  the  note  of  that  case  says, 
Lord  Mansfield  added,  "and  this  was  ruled,  not  upon  principles  of  equity 
only,  but  the  laws  of  property."    Do  these  words  fairly  import  that  the  pro- 
perty was  not  altered  by  a  bill  of  lading,  or  by  the  indorsement  of  it  ?  That 
the  liberty  of  stopping  goods  in  transitu  is  originally  founded  on  principles 
of  equity,  and  that  it  has,  in  the  case  before  him,  been  adopted  by  the 
law,  and  that  it  does  affect  property,  are  all  true  ;  and  that  is  all  that  the 
words  mean  ;  not  that  the  property  did  not  pass  by  the  bill  of  lading.    The 
commercial  law  of  this  country  was  never  better  understood,  or  more  cor- 
rectly administered,  than  by  that  great  man.    It  was  under  his  fostering  hand 
that  the  trade  and  the  commercial  law  of  this  country  grew  to  its  present 
r*427"l  ^"^'^^'"s  ^i^*^  •  ^"t^  when  we  find  him  in  other  instances  adopting 
L         -^  the  *language  and  opinion  of  Lord  Chief  Justice  Holt,  and  saying, 
that  since  the  cases  before  him  it  had  always  been  held,  that  the  delivery 
of  a  bill  of  lading  transferred  the  property  at  law,  and   in  the  year  1767 
deciding  that  ver}'^  point,  it  does  seem  to  me  to  be  absolutely  impossible 
to  make  a  doubt  of  what  was  his  opinion   and  meaning.     All  his  determina- 
tions on  the  subject  are  uniform.     Even  the  case  of  Savignac  v.  Cuff,(6)  of 
which  we  have  no  account  besides  the  loose  and  inaccurate  note  produced 
at  the  bar,  as  I  understand  it,  goes  upon   the  -same   principle.     The  note 
states  that  the  counsel  for  the  plaintiff  relied  on  the  property  passing  by  the 
bill  of  lading;   to  which  Lord  Mansfield  answered,  the  plaintiff  has  lost  his 
lien,  he  standing  in  the  place  of  the  consignee.     Lord  Mansfield  did  not 
answer  mercantile  questions  so;    which,  as.  stated,  was  no  answer  to  the 
question  made.     But  I  think  enough   appears  on   that  case  to  show  the 
grounds  of  the  decision,  to  make  it  consistent  with  the  case  of  Wright  v. 
Campbell,  and  to  prove  it  a  material  authority  for  the  plaintiffs  in  this  case. 
I  collect  from  it  that  the   plaintiff  had   notice  by  the  letter  of  advice,  that 
Lingham  had  not  paid   for  the  goods  ;  and  if  so,  then,  according  to  the  case 
of  Wright  V.  Campbell,  he  could  only  stand  in  Lingham's  place.     But  the 
necessity  of  recurring  to  the  question  of  notice,  strongly  proves  that  if  there 
had  been  no  such  notice,  the  plaintiff,  who  was  the  assignee  of  Lingham 
the  consignee,  would  not  have  stood  in  Lingham's  place,  and  the  consignor 

(a)  1  H.  Black.  365,  n.,  ante,  p.  410,  n.  a. 
{!))  Cited  in  2  Term  Rep.  66. 


LICKBARROW     V.     MASON.  643 

could  not  have  seized  the  goods  in  transitu  ;  but  that,  having  seized  them, 
the  plaintifl"  would  have  been  entitled  to  recover  the  full  value  of  them  from 
him.  This  way  of  considering  it  makes  that  case  a  direct  authority  in 
point  for  the  plaintiffs.  There  is  another  circumstance  in  that  case  material 
for  consideration  ;  because  it  shows  how  far  only  the  right  of  seizing  in  tran- 
situ extends,  as  between  the  consignor  and  consignee.  The  plainiifT  in 
that  action  was  considered  as  the  consignee  ;  the  defendant,  the  consignor, 
had  not  received  the  full  value  for  his  goods;  but  the  consignee  had  paid 
150/.  on  account  of  them.  Upon  the  insolvency  of  the  consignee,  the  con- 
signor seized  the  goods  in  transitu ;  but  that  was  holden  not  to  be  justifiable, 
and  therefore  there  was  a  verdict  against  him.  That  was  an  action  of 
trover,  which  could  not  have  been  sustained  but  on  the  ground  that  the 
property  was  *vested  in  the  consignee,  and  could  not  be  seized  in  r^^^gQ-i 
transitu  as  against  him.  If  the  legal  property  had  remained  in  the  L  -• 
consignor,  what  objection  could  be  stated  in  a  court  of  law  to  the  consignor's 
taking  his  own  goods  ?  But  it  was  holden,  that  he  could  not  seize  the 
goods;'  which  could  only  be  on  the  ground  contended  for  by  Mr.  Wallace, 
the  counsel  for  the  plaintiff,  that  the  property  was  in  the  consignee  :  but 
though  the  property  were  in  the  consignee,  yet,  as  I  stated  to  your  lordships 
in  the  outset,  if  the  consignor  had  paid  to  the  consignee  all  that  he  had 
advanced  on  account  of  the  goods,  the  consignor  would  have  had  a  right  to 
the  possession  of  the  goods,  even  though  they  had  got  into  the  hands  of  the 
consignee  ;  and  upon  paying  or  tendering  that  money,  and  demanding  the 
goods,  the  property  would  have  revested  in  him,  arhd  he  might  have  main- 
tained trover  for  them  :  but  admitting  that  the  consignee  had  the  legal  pro- 
perty, and  was  therefore  entitled  to  a  verdict,  still  the  question  remained 
what  damages  he  should  recover ;  and  in  ascertaining  them,  regard  was  had 
to  the  true  merits  of  the  case,  and  the  relative  situation  of  each  party.  If 
the  consignee  had  obtained  the  actual  possession  of  the  goods,  he  would 
have  had  no  other  equitable  claim  on  them  than  for  ISQi.  He  was  entitled 
to  no  more,  the  defendant  was  liable  to  pay  no  more  ;  and  therefore  the  ver- 
dict was  given  for  that  sum.  This  case  proceeded  precisely  upon  the  same 
principles  as  the  case  of  Wiseman  v.  Vandeputt  ;  where,  though  it  was 
determined  that  the  legal  property  in  the  goods,  before  they  arrived,  was  in  ' 
the  consignee,  yet  the  Court  of  Chancery  held  that  the  consignee  should  not 
avail  himself  of  that  beyond  what  was  due  to  him:  but  for  what  was  due, 
the  court  directed  #n  account;  and  if  any  thing  were  due  from  the  Italians 
to  the  Bonnells,  that  should  be  paid  the  plaintiffs.  The  plaintiffs  in  this 
cause  are  exactly  in  the  situation  of  the  plaintiffs  in  that  case  ;  for  they 
have  the  legal  property  in  the  goods  ;  and,  therefore,  if  any  thing  be  due 
to  them,  even  in  equity,  that  must  be  paid  before  any  person  can  take  the 
goods  from  them,  and  520/.  was  due  to  them,  and  has  not  been  paid. 

After  these  authorities,  taking  into  consideration  also  that  there  is  no  case 
whatever  in  which  it  has  been  holden  that  goods  can  be  stopped  in  transitu,  after 
they  have  been  sold  and  paid  for,  or  money  advanced  upon  them  bona  fide,  and 
*vvithout  notice,  I  do  not  conceive  that  the  case  is  open  to  anj'-argu-  r-^^nq-^ 
ments  of  policy  or  convenience  ;  but  if  it  should  be  thought  so,  L  J 
I  beg  leave  to  say,  that  in  all  mercantile  transactions,  one  great  point  to  be 
kept  uniformily  in  view  is,  to  make  the  circulation  and  negotiation  of  pro- 
perty as  quick,  as  easy,  and  as  certain  as  possible.     If  this  judgment  stand, 


644  SMITHS     LEADING    CASES. 

no  man  will  be  safe  either  in  buying  or  lending  money  upon  goods  at  sea. 
That  species  of  property  will  be  locked  up  ;  and  many  a  man,  who  could 
support  himself  with  honour  and  credit,  if  he   could  dispose  of  such  pro- 
perty to  supply  a  present  occasion,  would  receive  a  check,  which  industry 
caution  or  attention  should  not  surmount.     If  the  goods  are  in  all  cases  to 
be  liable  to  the  original  owner  for  the  price,  what  is  there  to  be  bought  ? 
There  is  nothing  but  the  chance  of  the  market ;  and  that  the  buyer  expects 
as  his  profit  on  purchasing  the  goods,  without  paying  an  extra  price  for  it. 
But  Turing  has  transferred  the  property  to  Freeman,  in  order  that  he  might 
transfer  it  again  and  has  given  him  credit  for  the  value  of  the  goods.     Free- 
man having  transferred  the  goods   again  for   value,  I  am   of  opinion  that 
Turing  had  neither  property,  lien,  nor  a  right  to  seize  in  transitu.     The 
great  advantage  which  this   country  possesses  over  most,  if  not  all   other 
parts  of  the  known  world,  in  point  of  foreign  tfade,  consists  in  the  extent 
of  credit  given  on  exports,  and  the  ready  advances  made  on  imports  ;  but 
artiidst  all  these  indulgences,  the  wise   merchant  is  not  unmindful  of  his' 
true  interests,  and  the  security  of  his  capital.     L  will  beg  leave  to  state,  in 
as  few  words  as  possible,  what  is  a  very  frequent  occurrence  in  the  city  of 
London  ; — A  cargo  of  goods  of  the  value  of  2000/.  is  consigned  to  a  mer- 
chant in  London  ;   and  the  moment  they  are  shipped,  the  merchant  abroad 
draws  upon  his  correspondent  here  to  the  value  of  that  cargo  ;   and  by  the 
first  post  or  ship  he  sends  him  advice  and  encloses  the  bill  of  lading.      The 
bills  in  most  cases  arrive  before  the  cargo  ;  and  then  the  merchant  in  Lon- 
don must  resolve  what  part  he  will  take.     If  he  accept  the  bills,  he  becomes 
absolutely  and  uncondilionably  liable;  if  he  refuse  them,  he  disgraces  his 
correspondent  and  loses   his  custom  directly.     Yet  to  engage  for  2000/., 
without  any  security  from  the  drawer,  is  a  bold  measure.     The  goods  may- 
be lost  at  sea;  and  then  the  merchant  here  is  left  to  recover  his  money  against 
,  .qnn  ^^^  *drawer  as  and  when  he  may.     The  question  then  with  the  mer- 
L         J  chant  is,  how  can  I  secure  myself  at  all  events?  The  answer  is,  I  will 
insure  :  and  then  if  the',  goods  come  safe,  I  shall   be  repaid  out  of  them  ; 
or,  if  they  be  lost,  I  shall  be  repaid  by  the  underwriters -on  the  policy  :   but 
this  cannot  be  done  unless  the  property  vest  in  him  by  the  bill  of  lading; 
for  otherwise  his   policy  would  be  void  for  want  of  interest  ;t  and  an  insu- 
rance, in  the  name  of  the  foreign  merchant,  would  not  answer  the  purpose. 
This  is  the  case  of  the  merchant  who  is  wealthy,  and  has  the  2000/.  in  his 
banker's  hands,  which  he  can  part  with,  and  not,  find  an.y  inconvenience  in 
so  doing  ;  but  there  is  another  case   to  be  considered,  viz.     Suppose  the 
merchant  here  has  not  got  the  2000/.  and  cannot  raise  it  before  he  has  sold 
the  goods  ? — the  same  considerations  arise  in  his  mind  as  in  the  former  case, 
with  this  additional  circumstance,  that  the  money  must  be  procured  before 
the  bills  become  due.     Then  the  question  is,  how  can  that  be  done  ?     If  he 
have  the  property  in  the  goods,  he  can  go  to  market  with  the  bill  of  lading 
and  the  policy,  as  was  done  in  Snee  v.  Prescot ;  and  upon  that  idea,  he  has 
hitherto  had  no  difficulty  in   doing  so  ;  but   if  he    have  not  the   property, 
nobody  will  buy  of  him  ;  and  then  his  trade  is  undone.      But  there  is  still 
a  third  case  to  be  considered  ;  for  even  the  wary  and  opulent  merchant 
often  wishes  to  sell  his  goods  whilst  they  are  at  sea.     I  will  put  the  case, 

t  St.  19  G.3,  cap.   37,  sect.  ]. 


LICKBARROWV.     MASON.  645 

by  way  of  example,  that  barilla  is  shipped  for  a  merchant  here,  at  a  time 
when  there  has  been  a  dearth  of  that  commodity,  and  it  produces  a  profit  of 
251.  per  cent.,  whereas,  upon  an  average,  it  does  not  produce  above  12/. 
The  merchant  has  advices  that  there  is  a  great  quantity  of  that  article  in  Spain, 
intended  for  the  British  Market.;  and  when  that  arrives,  the  market  will  be 
glutted,  and  the  commodity  much  reduced  in  value.  He  wishes,  therefore, 
to  sell  it  immediately  whilst  at  sea,  and  before  it  arrives  ;  and  the  profit 
which  he  gets  by  that  is  fair  and  honourable  :  but  he  cannot  do  it  if  he  have 
not  the  property  by  the  bill  of  lading.  Besides  a  quick  circulation  is  the 
life  and  soul  of  trade  ;  and  if  the  merchant  cannot  sell  with  safety  to  the 
buyer,  that  must  necessarily  be  retarded.  '  From  the  little  experience  which 
I  acquired  on  this  subject  at  Guildhall,  I  am  confident  that,  if  the  goods  in 
question  be  retained  from  the  plaintiff  without  ^repaying  him  what  |-i^^qn 
he  has  advanced  on  the  credit  of  them,  it  will  be  mischievous  to  L  J 
the  trade  and  commerce  of  this  country  ;  and  it  seems  to  me  that  not  only 
commercial  interest,  but  plain  justice  and  public  policy,  forbid  it.  To  sum 
up  the  whole  in  very  few  words  :  the  legal  property  was  in  the  plaintiff; 
the  right  of  seizing  in  transitu  is  founded  on  equity.  No  case  in  equity 
has  ever  suffered  a  man  to  seize  goods  in  opposition  to  one  who  has  obtained 
a  legal  title,  and  has  advanced  money  upon  them  ;  but  Lord  Hardwicke's 
opinion  was  clearly  against  it  ;  and  the  law,  where  it  adopts  the  reason- 
ing and  principles  of  a  court  of  equity,  never  has  and  never  ought  to 
exceed  the  bounds  of  equity  itself.  I  offer  to  your  lordships,  as  my  humble 
opinion,  that  the  evidence  given  by  the  plaintiff,  and  confessed  by  the 
demurrer,  is  sufficient  in  law  to  maintain  the  action. 

^shurst  and  Grose,  Justices,  also  delivered  there  opinions  for  reversing 
the  judgment  of  the  Exchequer  Chamber. 

Eyre,  C.  J.,  Gould,  J.,  Heath,  J.,  Hotham,  B.,  Perryn,  B.,  and  Thom- 
son, B.,  contra. 

This  case  stood  over  from  time  to  time  in  the  House  ;  and  was  postponed 
in  order  to  consider  a  question  which  arose  in  another  case  of  Gibson  v. 
Minet,  upon  the  nature  and  effect  of  a  demurrer  to  evidence,  which  was 
thought  to  apply  also  to  the  present  case  ;  and  finally,  the  House  reversed 
the  judgment  of  the  Exchequer  Chamber,  which  had  been  given  for  the 
defendant ;  and  ordered  the  King's  Bench  to  award  a  venire  de  novo  (upon 
the  ground  that  the  demurrer  to  evidence  appeared  to  be  informal  upon  the 
record)  and  that  the  record  be  remitted. 


This   celebrated  case  involves    two  prevent  the  injustice  which  would  take 

important  propositions.     The  former  is,  place,  if,  in  consequence  of  the  vendee's 

that  the  unpaid  vendor  may,  in  case  of  insolvency,  while  the  price  of  the  goods 

the  vendee's  insolvencij,  stop  the  goods  was  yet  unpaid,  they  were  to  be  seized 

sold  in  transitu.     The  latter,  that  the  upon  in  satisfaction  "of  his  liabilities,  and 

right  to  stop  in  transitu  may  be  defeated  so  the  property  of  one  man  were  to  be 

by  negotiating  the  bill  of  lading  with  a  disposed  of  in  payment  of  tiie  debts  of 

bona  fide  indorsee.  anotlier.     The  doctrine  was  first  intro- 

The  right  of  a  vendor  to  stop  in  tran-  duced  in  Equity  by  the  cases  of  Wise- 
situ  is  bestowed  upon  hini  in  order  to  man  v.  Vandeput,  2  Vern.  203;  Snee  v. 


646 


smith's  leading  cases. 


Prescot,  1  Atk.  246,  and  D'Aquila  v. 
Lambert,  2  Eden,  75,  Amb.  39.  It  has 
since  been  repeatedly  discussed  in 
Courts  of  Common  Law;  and  it  appears 
strange  that  though  stoppage  in  tran- 
situ has  been  for  many  years  one  of  the 
most  practically  important  branches  of 
r*4S21  ^commercial  law,  yet  its  pre- 
'■  '  -'  cise  effect  upon  the  contract 
of  sale  has  never  as  yet  been  ascertained. 
The  question  whether  stoppage  in 
transitu  rescinds  the  contract  of  sale 
altogether,  or  only  puts  the  vendor  in 
possession  of  a  lien  on  the  goods  defeasi- 
ble on  payment  of  the  price  agreed  on, 
has  often  been  matterof  controversy,  par- 
ticularly in  Clay  v.  Harrison,  10  B. 
&  C.  99,  and  it  was  said  in  Stepiiens  v. 
Wilkinson,  3  B.  &  Ad.  32:?,  to  be  still 
undetermined.  See  also  VVilmhurst  v. 
Bowker,  5  Bingh.  N.  C.  547;  and 
Edwards  v.  Brewer,  2  Mee.  &  W.  375. 
Lord  Kenyon  in  Hodgson  v.  Loy,  7 
T.  R.  445,  was  of  opinion  that  it  was 
not  a  recision  of  the  sale,  but  was,  (to 
use  his  lordship's  own  words)  "an 
equitable  lien  adopted  by  the  law  for 
the  puTiioses  of  substantial  justice," 
whence  it  was  held  to  follow  that  part 
payment  of  the  price  by  the  vendee 
would  not  destroy  the  right  to  stop  in 
transitu,  but  only  diminish  the  lien  pro 
lanto.  Confusion  has  sometimes  arisen 
on  this  subject,  from  its  being  assumed 
that  a  vendor's  right  over  the  goods  in 
respect  of  his  price,  is  subject  to  the  same 
rules  as  an  ordinary  lien,  which  cannot 
exist  without  both  the  right  and  the 
fact  of  possession,  and  is  lost  and  cannot 
be  resumed,  if  the  party  claiming  it 
abandon  either  the  possession  or  the 
right  to  possess  the  thing  over  which 
it  is  claimed:  whereas  "the  vendor's 
right  in  respect  of  his  price,"  says 
Bayley,  J.,  delivering  judgment  in 
Bloxam  V.  Sanders,  4  B.  &  C  948,  "  is 
not  a  mere  lien  which  he  will  forfeit  if 
he  part  with  the  possession,  but  grows 
out  of  his  original  ownership  and  do- 
minion. If  goods  are  sold  on  credit,  and 
nothing  is  agreed  on  as  to  the  time  of 
delivering  the  goods,  the  vendee  is 
immediately  entitled  to  the  possession; 
and  the  right  of  possession,  and  the 
right  of  property  vests  at  once  in  him  ; 
but  his  right  of  possession  is  not  abso- 
lute, it  is  liable  to  be  defeated  if  he 
become  insolvent  before  he  obtains  pos- 
session, Tooke  V.  Hoi  ling  worth,  5  T.  R. 
215.  If  the  seller  has  dispatched  the 
goods    to    the    buyer,    and    insolvency 


occur,  he  has  a  right  in  virtue  of  his 
original  ownership  to  stop  them  in  tran-' 
situ.  IMason  v.  Lickbarrow,  1  H.  Bl. 
357;  Ellis  v.  Hunt,  3  T.  R.  464; 
Hodgson  V.  Loy,  7  T.  R.  440 ;  Inglis  v. 
Usherwood,  1  East,  515;  Bothlingk  v. 
Inglis,  3  East,  381.  Why]  Because 
the  property  is  vested  in  the  buyer,  so 
as  to  subject  him  to  the  risk  of  any 
accident,  but  he  has  not  an  indefeasible 
right  to  the  possession,  and  his  insol- 
vency without  payment  of  the  price 
defeats  that  right.  The  buyer,  or  those 
who  stand  in  his  place,  may  still  obtain 
the  right  of  possession,  if  they  will  pay 
or  tender  the  price,  or  they  may  still 
act  on  their  right  of  property  if  any 
thing  unwarrantable  is  done  to  that 
right.  If  for  instance  the  original  ven- 
dor sell  when  he  ought  not,  they  may 
bring  a  special  action  against  him  for 
the  damage  they  sustain  by  such  wrong- 
ful sale,  and  recover  damages  to  the 
extent  of  that  injury;  but  they  can 
maintain  no  action  on  which  the  riglit 
of  property  and  right  of  possession  are 
both  requisite,  unless  they  have  both 
those  rights,  Gordon  v.  Harper,  7  T.  R. 
9."  This  luminous  view  of  the  princi- 
ples upon  which  an  unpaid  vendor's 
•right  depends,  is,  as  will  have  been 
seen,  totally  inconsistent  with  the  idea 
that  stoppage  in  transitu  operates  as  a 
recision  of  the  contract  of  sale,  and 
deserves  the  more  attention  because  it 
is  contained  in  the  written  judgment  of 
the  court  delivered  after  a  cuiia  advi- 
sari  vult;  see,  too,  Edwards  v.  Brewer, 
2  Mee.  &  Welsh.  275.  Supposing  the 
contract  of  sale  not  to  be  rescinded,  it 
seems  to  follow,  that  the  goods,  while 
detained,  remain  at  the  risk  of  the  ven- 
dee, and  that  the  vendor  can  have  no 
right  to  resell  them,  at  all  events  until 
the  period  of  credit  is  expired  ;  after 
that  period  indeed  the  refusal  of  the 
vendee  or  his  representatives  to  receive 
the  goods  and  pay  the  price,  would 
probably  be  held  to  entitle  the  vendor 
to  elect  to  rescind  the  contract,  see 
Langford  v.  Tiler,  Salk.  113.  But  what, 
it  will  be  said,  if  the  goods  be  of  so 
perishable  a  nature  that  the  vendor 
cannot  keep  them  till  the  time  of  credit 
has  expired  1  In  such  a  case  it  is  sub- 
mitted that  courts  of  law  having  origi- 
nally adopted  this  doctrine  of  stoppage 
in  transitu  from  equity,  would  act  on 
equitable  principles  by  holding  the  ven- 
dor invested  with  an  implied  authority 
to  make  the  necessary  sale. 


LICKBARUOW     V.     MASON. 


647 


The  person  who  stops  in  transitu  must 
be  a  con.signor.  A  mere  surety  for  the 
price  of  the  goods  has  ho  right  to  do  so, 
Siffken  V.  Wray,  G  East,  '616.  But  a 
person  residing  abroad,  who  purchases 
goods  for  a  correspondent  in    fclngland, 

r  *4.'V^  1  *^^''0"'  ^^®  cliarges  with  a 
'-  J   commission  on  the  price,   but 

whose  names  are  unknown  to  those  from 
whom  he  makes  the  purchases,  may 
stop  the  goods  in  transitu  if  his  corres- 
pondent fail  wliile  they  are  on  their 
passage,  for  the  court  thouglit  that  the 
correspondent  abroad  might  be  consider- 
ed as  a  new  vendor,  selling  the  goods 
over  again  to  the  merchant  in  England, 
and  only  adding  to  the  price  the  amount 
of  his  commission.  Fiese  v.  Wray,  1 
East,  93:  See  Newsom  v.  Thornton,  6 
East,  17,  where  a  person  who  had  con- 
signed goods  to  be  sold  on  the  joint 
account  of  himself  and  the  consignee, 
was  held  entitled  to  stop  thein  in 
transitu,  the  consignee  becoming'  in- 
solvent. 

Stoppage  in  transitu,  as  its  name  im- 
ports, can  only  take  place  while  the 
goods  are  on  their  way ;  if  they  once 
arrive  at  the  termination  of  their  jour- 
ney, and  come  into  the  actual  or  con- 
structive possession  of  the  consignee, 
there  is  an  end  of  the  vendor's  right  over 
them.  And,  therefore,  m  most  of  the 
cases  the  dispute  has  been  whether  the 
goods  had  or  had  not  arrived  at  the  ter- 
mination of  their  journey.  The  rule 
to  be  collected  from  all  the  cases  is, 
that  they  are  in  transitu  so  long  as  they 
are  in  the  hands  of  the  carrier  as  such, 
whether  he  was  or  was  notappomted  by 
tlie  consignee,  and  also  so  long  as  they 
remain  in  any  place  of  deposit  connect- 
ed with  their  transmission.  But  that, 
if,  after  their  arrival  at  their  place  of 
destination,  they  be  warehoused  with 
the  carrier,  whose  store  the  vendee  uses 
as  his  own,  or  even  if  they  be  ware- 
housed, with  the  vendor  himself,  and 
rent  be  paid  to  him  for  tiiem,  that  puts 
an  end  to  the  right  to  stop  in  transitu. 
See  Nichols  v.  Lefevre,  2  Bing.  N.  C. 
83  ;  James  v.  Griffin,  1  M.  &  VV  els.  20  ; 
Edwards  v.  Brewer,  2  JVlee.  &  VVels. 
375;  and  James  v.  Griffin,  interum,  2 
Mee.  &  Wels.  623;  where  the  court 
ditfered  on  the  question  whether  evi- 
dence of  the  vendee's  intention  not  to 
take  possession  uncommutiicaled  to  the 
wharfinger  was  admissible.  Mills  v. 
Ball,  2  B:  &  P.  4.37  ;  Hoist  v.  Pownall, 
1  Esp.  240 ;  Northey   v.  Field,  2  Esp. 


613;  Hodgson  v.  Loy,  7  T.  R.  440; 
Smith  v.  Goss,  1  Camp.  282  ;  Coates  v. 
Railton,  6  B.  &,  C.  422;  Richardson  v. 
Goss,  3  B.  &  P.  127 ;  Scott  v.  Petit,  3 
B.  &.  P.  469;  Foster  v.  Frampton,  6  B. 
&  C.  109  ;  Allen  v.  Gripper,  2  Tyrwh. 
217 ;  Rose  v.  Pickford,  Hurry  v.  Man- 
gles, 1  Camp.  452;  Stoveld  v.  Hughes, 
13  East,  408.  If  the  vendor  allow  the 
vendee  to  take  possession  of  part  of  the 
goods  sold  under  an  entire  contract, 
without  intending  to  retain  the  rest,  his 
right  to  stop  in  transitu  is  gone.  Ham- 
mond V.  Anderson,  1  N.  R.  69.  See 
Sliiby  V.  Hay  ward,  2  H.  Bl.  504 ;  Han- 
son v.  Meyer,  6  East,  014.  But  it 
is  otherwise  if  he  do  intend  to  retain  the 
remainder.  Bunney  v.  Poyntz,  4  B.  & 
Ad.  570;  Dixon  v.  Yeates,  5  B.  &  Ad. 
339.  Prima  facie,  however,  delivery 
of  part  imports  an  intention  to  deliver 
the  whole.  Per  Taunton,  J.,  Belts  v. 
Gibbins,  2  Ad.  &  E.  73. 

However,  though  the  determination 
of  the  transit  puts  an  end  to  the  ven- 
dor's right  to  slop  the  goods,  the  vendee 
is  not  allowed  to  anticipate  its  natural 
determination,  as,  for  instance,  by  going 
to  meet  the  goods  at  sea.  Hoist  v. 
Pownall,  1  Esp.  240.  Vide,  tamen,  the 
judgments  in  Mills  v.  Ball,  2  B.  &.  P. 
461  ;  Oppenheim  v.  Russell,  3  B.  &  P. 
54;  Foster  v.  Frampton,  6  B.  &  C.  107. 
Nor  can  the  vendor's  right  bo  defeated 
by  tiie  enforcement  of  a  claim  against 
the  vendee,  as  for  instance,  by  process 
of  foreign  attachment  at  the  suit  of  his 
creditor,  or  by  the  carrier's  assertion  of 
a  general  lien  against  him.  Smith  v. 
Goss,  1  Camp.  282;  Butler  v.  Woolcot, 
2  N.  R.  64  ;  Nichols  v.  Lefevre,  2  Bing. 
N.  C.  83. 

The  second  vendee  of  a  chattel  can- 
not, generally  speaking,  stand  in  a  bet- 
ter situation  than  his  immediate  vendor, 
Small  v.  Moate,  9  Bing.  574.  If,  there- 
fore, the  vendee  sell  the  goods  before 
they  have  been  delivered  to  him,  he 
sells  them,  generally  speaking,  subject 
to  the  vendor's  right  to  stop  in  transitu. 
Dixon  v.  Yates,  5  B.  &  A.  313.  But  on 
this  rule  the  principal  case  has  engraft- 
ed an  exception  ;  for  the  second  and 
main  point  in  Lickbarrow  v.  Mason  is, 
that  the  vendee  may,  by  negotiating  the 
bill  of  lading  to  a  bona  fide  transferree, 
defeat'the  vendor's  right  to  stop  in  tran- 
situ. A  succinct  history  of  the  law  on 
this  point  is  given  by  Lord  Tenterden, 
in  his  admirable  vvoik  on  shipping,  p. 
388,  where  he  remarks,  that  "  the  ear- 


648 


smith's   leading   cases. 


liest  mention  of  the  subject  in  our  law 
books  is  the  case  of  Evans  v.  Martlett, 
1  Lord  Raym.  271 ;  12  Mod.  156 ;  in 
which  Holt,  C.  J.,  sai<I,  '  the  consignee 
of  a  bill  of  lading  has  such  a  property, 
that  he  may  assign  it  over :'  and  Shower 
said  'that  it  had  been  adjudo-ed  so  in 
P^.„ ,,  *the  Exchequer.'  But,  in  that 
L  -'  case  the  eti'ect  of  such  an  as- 
signment was  not  properly  before  the 
court,  and  does  not  appear  to.  have 
been  discussed  or  argued;  and. the  case 
supposed  to  be  referred  to  by  Shower 
has  not  been  found.  In  the  case  of  Snee 
V.  Prescot,  1  Atk.  246,  the  right  of  the 
pawnee  of  the  bill  of  lading  as  against 
the  consignor  was  not  noticed  or  insisted 
upon."  He  then  proceeds  to  comment 
on  the  cases  of  Wright  v.  Campbell, 
4  Burr.  2046;  1  Bl.  623;  Hibbert  %^. 
Carter,  1  T.  R.  745;  Caldwell  v.  Ball, 
Id.  205;  and  Lickbarrow  v.  Mason;- 
and  concludes  by  stating  that  "  that 
cause  was  tried  again,  and  that  the 
Court  of  King's  Bench,  at  the  head  of 
which  Lord  Kenyon  had  in  the  mean 
time  been  placed,  and  who  had,  in 
another  cause,  expressed  his  approbation 
of  the  first  judgment  in  this  case,  as 
being  founded  on  principles  of  justice 
and  common  honesty,  again  decided  the 
case  without  argument,  in  conformity 
to  the  first  decision  of  that  court ;  5  T.' 
R.  683;  and,  in  order  that  the  question 
might  again  be  carried  to  the  other 
tribunals,  another  writ  of  error  was 
brought ;  hut  it  was  afterwards  aban- 
doned, and  it  is  now  the  admitted 
doctrine  in  our  courts  that  the  consig- 
nee may  under  the  circumstances 
before  slated,  confer  an  absolute  right 
and  property  upon  a.  third  person,  in- 
defeasible by  any  claim  on  the  part  of 
the  consignor. 

But  if  the  assignee  of  a  bill  of  lading 
act  mala  fide;  for  instance  if  he  knew 
that  the  consignee  of  the  goods  was 
insolvent,  and  took  the  assignment  of 
the  bill  of  lading  for  the  purpose  of 
defeating  the  riglit  to  stop  in  transitu, 
and  so  defrauding  the  consignor  out  of 
the  price  ;  he  will  be  held  to  stand  in 
the  same  situation  as  tlie  consignee; 
and  the  consignor  will  preserve  his 
right  of  stoppage.  Per  Lord  Ellenbo- 
rough,  delivering  judgment  in  Gumming 
V.  Brown,  9  East,  514.  And  if  the 
bill  of  lading  contain  a  condition,  ex.  gr., 
if  it  be  indorsed  upon  it  that  the  goods 
are  to  be  delivered,  provided  E.  F.  pay 
a  certain  draft,  every  indorsee  takes  it 


subject  to  that  condition,  and  will  have 
no  title  to  the  goods,  unless  it  be  per- 
formed. Barrow  v.  Coles,  3  Camp, 
92. 

A  factor,  however,  to  whom  goods 
were  consigned,  stood  in  a  different 
situation  from  a  vendee  with  respect  to 
his  power  to  pass  the  property  therein 
by  an  indorsement  of  the  bill  of  lading. 
For,  though  he  might  bind  his  principal 
by  a  sale  thereof,  he  could  not  by  a 
pledge,  that  not  being  within  the  usual 
scope  of  his  authority.  Martin  v.  Coles, 
1  M.  &  S.  140  ;  Shipley  v.  Kymer,  Ibid. 
4S4;  Newsom  v.  Thornton,  6  East,  17. 
But  by  statute  4  G.  4,  c.  83,  amended 
by  6  G,  4,  c.  94,  usually  called  the 
Factor's  Act,  the  law  upon  this  subject 
was  altered.  By  that  statute,  sec.  2,  a 
person  intrusted  with,  and  in  possession 
of,  any  bill  of  lading,  is  to  be  deemed 
the  true  owner  of  the  goods  described 
in  it,  so  far  as  to  give  validity  to  any 
contract  made  by  him,  for  the  sale  or 
disposition  of  the  goods  or  any  part 
thereof,  or  for  the  deposit  or  pledge 
thereof,  or  any  part  thereof  as  a  secu- 
rity for  any  money,  or  negotiable  instru- 
ment, provided  the  buyer,  disponee,  or 
pawnee,  have  no  notice  by  the  bill  or 
othervyise,  that  he  was  not  the  actual 
bona  fide  owner  of  the  goods.  (Upon 
the  question  who  is  to  be  considered  a 
person  "intrusted'^  within  the  meaning 
of  this  section,  see  Close  v.  Holmes,  2 
M.  &  Rob.  23;  Phillips  v.  Huth,  6  M. 
&  W.  605.)  [In  the  latter  case,  the 
necessity,  that  the  factor  should  have 
been  entrusted  with,  as  well  as  possessed 
of,  the  document  pledged,  was  fully 
shown.  This  view  of  the  law  was  con- 
firmed by  the  Exchequer  Chamber  in 
Hatfield  v.  Phillips,  9  M.  &  VV.  647. 
Subsequently  was  passed  the  stat.  5  &  6 
Victoria,  c.  39,  by  the  enactments  of 
which  it  would  appear,  that  any  person 
possessed  of  the  documentary  gvidenceof 
title  in  chattels,  in  the'  regular  course  of 
business,  is  to  be  deemed  intrusted  with 
it  by  the  owner  ]  But  by  sec.  3,  if  the 
deposit  or  pledge  be  as  a  security  for  a 
pre-existing  demand,  the  depositee  or 
pawnee  acquires  only  the  same  interest 
in  them  that  was  possessed  by  the  per- 
son making  the  deposit,  or  pledge. 
Section  5  enacts  that  any  person-  may 
accept  any  such  goods  or  document  as 
aforesaid,  on  deposit  or  pledge  from  any 
factor  or  agent,  notwithstanding  lie 
shall  have  notice,  that  the  party  is  a 
factor  or  agent ;  but  in  such  case  he  shall 


LICKBARROW     V.     MASON. 


649 


[*435] 


acquire  such  interest,  and  no  furtiior  or 
otlier,  as  was  possessed  by  the  factor 
or  agent  at  the  lime  of  the  deposit  or 
pledge  :  and,  therefore,  in  this  last  case, 
if  the  agent's  interest  be  defeasible,  so 
is  the  pledgee's.  Blandy  v.  Allen,  Dans, 
&  Lloyd,  22;  Fletcher  v.  Heath,  7  B. 
&  C.  517.  A  fraudulent  sale  cannot 
be  upheld  as  a  pledge  under  this  sec- 
tion. Thompson  v.  Farmer,  1  M.  &  M. 
48. 

In  cases  where  a  bill  of  lading  may 
be,  and  has  been,  pledged  by  the  con- 
signee of  the  goods,  as  a  security  for  his 
own  debt,  the  legal  right  to  the  posses- 
sion of  the  goods  passes  to  the  pledgee  ; 
but  the  right  to  stop  them  in  transitu, 
in  case  the  consignee  should  become 
insolvent  is  not  absolutely  defeated, 
as  it  is  in  the  case  of  a  sale  of  a 
bill  of  lading  by  the  *consig- 
nee :  for  the  vendor  may  still  re- 
sume his  interest  in  them  subject  to 
the  rights  of  the  pledgee,  and  will  have 
a  right,  at  least  in  equity,  to  the  residue 
which  may  remain,  after  satisfying  the 
pledgee's  claim.  And  further,  if  the 
goods  comprised  within  the  bill  of  lading 
be  pledged  along  with  other  goods 
belonging  to  the  pledger  himself,  the 
vendor  will  have  a  right  to  have  all  the 
pledger's  own  goods  appropriated  to  the 
discharge  of  the  pledgee's  claim  before 
any  of  the  goods  comprised  within  the 
bill  of  lading  are  so.  This  was  decided 
In  re  Wostzinthus,  5  B.  &  Ad.  817, 
where  Lapage  &  Co.  having  purchased 
oil  from  plaintiff  Westzintlius,  paid  for 
it  by  acceptance :  and  being  in  posses- 
sion of  the  bills  of  lading,  pledged  ihem 
with  Hardman  &  Co.,  as  a  security  for 
certain  advances,  Lapage  &  Co.  be- 
came bankrupt,  and  their  acceptance 
in  the  plaintiff's  favour  was  dishonour- 
ed. At  the  time  of  their  bankruptcy 
they  owed  Hardman  &  Co,  9271Z.  on 
account  of  advances;  as  a  security  for 
which  they  held,  besides  the  bill  of 
lading,  goods  to  the  value  of  9961^.  Is. 
Id.,  belonging  to  Lapage  himself  The 
court  held  that  Westzinthus,  who  had, 
upon  the  bankruptcy  of  Lapage  &  Co., 


given  notice  to  the  master  of  the  ship 
that  he  claimed  to  stop  the  oil  in  tran- 
situ, had  a  right  to  insist  upon  the 
proceeds  of  Lapage's  own  goods  being 
appropriated  to  the  discharge  of  Hard- 
man's  lien,  and,  as  they  proved  suffi- 
cient to  satisfy  it,  had  a  right  to  receive 
the  entire  proceeds  of  his  oils. — "As 
Westzinthus,"  said  Lord  Denman,  de- 
livering the  judgment  of  the  court, 
"  would  have  had  a  clear  right  at  law 
to  resume  the  possession  of  the  goods 
on  the  insolvency  of  the  vendee,  had  it 
not  been  for  the  transfer  of  the  property 
and  right  of  possession  for  a  valuable 
consideration  to  Hai-dman,  it  appears  to 
us,  that  in  a  court  of  equity  such  trans- 
fer would  be  considered  as  a  pledge  or 
mortgage  only  ;  and  Westzinthus  would 
be  considered  as  having  resumed  his 
former  interest  in  the  goods,'  subject  to 
that  pledgee  or  mortgagee,  in  analogy 
to  the  conmion  case  of  a  mortgage  of 
real  estate,  which  is  considered  as  a 
mere  security,  and  the  mortgagor,  the 
owner  of  the  land.  We,  therefore, 
think  that  Westzinthus,  by  his  attempt- 
ed stoppage  in  transitu,  acquired  a  right 
to  the  goods  in  equity  (subject  to  Hard- 
man's  lien  thereon,)  as  against  Lapage 
and  his  assignees,  who  are  bound  by 
the  same  equity  that  Lapape  himself 
was ;  and  this  view  of  the  case  agrees 
with  the  opinion  of  Mr.  Justice  BuUer, 
in  his  comment  on  the  case  of  Snee  v. 
Prescot,  in  Lickbarrow  v.  JNIason. 

"  If  then  Westzinthus  had  an  equita- 
ble right  to  the  oil  subject  to  Hardman's 
lien  thereon  for  his  debt,  he  would,  by 
means  of  his  goods,  have  become  a  surety 
to  Hardman  for  Lapage's  debt ,'  and 
would  then  have  a  clear  equity  to  oblige 
Hardman  to  have  recourse  against 
Lapage's  own  goods  deposited  with  him 
to  pay  his  debt  in  ease  of  the  surety. 
And  all  the  goods  both  of  Lapage  and 
Westzinthus,  having  been  sold,  he 
would  have  a  right  to  insist  upon  the 
proceeds  of  Lapage's  goods  being  ap- 
propriated, in  the  first  instance,  to  the 
payment  of  the  debt." 


The  case  of  Lickbarrow  v.  Mason,  is  frequently  treated  as  deciding,  that 
in  tlie  absence  of  the  right  of  property,  and.  of  authority  to  sell,  a  consignee 
of  goods  may,  by  an  indorsement  of  the  bill  of  lading,  for  a  valuable  con- 


650  smith's   leading   cases. 

sideration,  create,  in  a  bona  fide  vendee  .from  him,  a  title  to  the  goods,  as 
against  the  true  owner.  A  capacilj^  for  transferring  the  right  of  properly 
under  such  circumstances,  implies  that  the  instrument  to  which  it  is 
attached,  is  negotiable;  and  accordingly,  not  only  in  text-books,  but  even  in 
the  dicta  of  judges  of  no  inconsiderable  authority,  bills  of  lading  are  said  to 
be  susceptible  of  negotiation.  But  by  referring  to  the  English  reports  and 
■  Statutes,  of  the  peViod  at  which  promissory  notes  were  introduced,  it  will  be 
found,  that  to  establish  the  negotiability  of  any  instrument,  requires  the 
authority  of  a  legislative  enactment,  or  of  an  express  judicial  decision  recog- 
nizing its  negotiable  character.  In  the  case  of  bills  of  lading,  both  these 
sources  of  authority  are  wanting.  Lickbarrow  v.  iVIason,  applies  only  to 
those  cases  in  which  a  previous  sale  of  the  goods  has  been  made  to  the 
consignee  ;  and  merely  determines,  that  if  the  vendee  of  goods  re-sell  them, 
after  they  have  left  the  custody  of  the  vendor,  to  a  bona  fide  purchaser  for 
value,  the  right  of  property  acquired  by  the  latter,  shall  not  be  defeated  by 
a  subsequent  stojipage  in  transitu,  if  he  have  taken  an  assignment  of  the 
bill  of  lading.  In  this  case,  the  properly  is  transferred  by  the  sale,  from 
the  original  vendor  to  the  first  vendee,  and  by  the  subsequent  conveyance 
from  him  to  the  purchaser,  and  these  circumstances  would  be  just  as  effec- 
tual in  passing  the  property. without,  as  with  the  indorsement  of  the  bill  of 
lading.  Ilsley  v.  Slubbs,  9  Mass.  65.  Gardner  v.  Howland,  2  Pick.  599. 
Stanton  v.  Eager,  16  Pick.  473.  Nathans  v.  Giles,  5  Taunton,  588. 
Meyer  v.  Sharpe,  Id.  74.  The  only  effect  of  the  bill,  is  due  to  its  being  a 
symbol  of  property,  but  even  when  indorsed  to  the  consignee,  "  its  posses- 
sion cannot  confer  on  him  more  power  over  the  properly,  than  would  the 
possession  of  the  property  itself."  "A  bill  of  lading  will  pass  the  pro- 
perty upon  a  bona  fide  indorsement  and  deliver}^  where  it  is  intended  so 
to  operate,  in  the  same  manner  as  a  direct  delivery  of  the  goods  themselves 
would  do,  if  so  intended.  But  it  cannot  operate  farther:"  per  Grose,  J., 
and  Ellenborough,  C.  .T.,  Newsom  v.  Thornton,  6  East,  41.  "The  bill 
of  lading  is  functus  officio,"  said  Lord  Denman  in  Hatfield  v.  Phillips,  9  M. 
&  W.  467  "as  soon  as  the  goods  are  landed  and  warehoused  in  the  name 
of  the  holder,  who  then  becomes  possessed  of  the  goods  themselves  in  the 
e5'^e  of  the  law,  and  derives  his  power,  not  from  the  bill  of  lading  but  from 
such  possession."  But  when  transferred  to  a  purchaser,  before  the  arrival  of 
the  goods,  the  bill  of  lading  amounts  in  fact  to  a  construciive  delivery,  and  con- 
sequently creates  a  constructive  possession  as  it  respects  tbird  parties,  (Gard- 
ner V.  Howfand ;)  and  when  therefore  received  by  a  party  to  whom  goods 
have  been  sold,  or  to  whom  an  authority  to  sell  goods  has  been  given,  will- 
enable  him,  in  addition  to  the  right  of  properly  which  he  might  pass,  inde- 
pendently of  the  bill,  to  give  by  its  indorsement  a  construciive  possession  to 
the  indorsee,  and  thus  defeat  the  consignor's  equity  to  a  stoppage  in  transitu. 
An  equity,  be  it  observed,  which  must  always  be  somewhat  inequitably 
exercised,  when  directed  against  a  bona  fide  purchaser  for  value,  from  a 
vendee  and  consignee,  by  a  consignor,  who,  in  addition  to  parting  with  the 
propert}'-  in  goods,  has  so  far  parted  with  the  possession,  as  to  have  put 
them  in  transitu  to  a  buyer,  on  the  failh  of  whose  property  a  second  pur- 
chaser has  paid  his  money. 

These  general  principles  were  recognized  and  applied,  in  the  case  of 
Newsom  v.  Thornton,  already  cited,  and  the  court  there  held,  that  where  a 


LICKBARROW     V.     MASON.  651 

factor,  indorsee  of  a  bill  of  lading,  indorsed  il  to  the  defendant,  the  latter 
took  under  it  no  right,  although  on  the  faith  of  the  indorsement,  he  had 
advanced  a  large  sum  of  money,  which  would  have  been  full  consideration 
to  have  supported  the  negotiation  of  the  bill,  had  il  been  really  negotiable. 

The  view  here  taken  of  the  bill  of  lading,  is  fully  supported  by  the  case 
of  Gardner  v.  Howland,  cited  above.  It  was  there  held,  that  the  properly 
in  chattels  while  at  sea,  as  in  all  other  cases  where  they  were  not  in  the 
actual  possession  of  the  vendor,  might  be  fully  passed  by  a  contract  of  sale. 
But  to  execute  such  a  contract,  as  it  regards  third  persons,  delivery  was 
said  to  be  in  all  cases  necessary,  although  when  actual  delivery  was  diffi- 
cult or  impossible,  a  symbolic  delivery,  whether  by  the  transfer  of  the  key 
of  a  warehouse,  or  of  the  bill  of  lading  of  a  shipment,  would  be  sufficient. 

For  this  symbolic  delivery  however,  the  symbol  sanctioned  by  the  custom 
of  trade  should  be  employed  where  practicable;  and,  consequently,  if  the 
vendor  of  a  cargo  at  sea,  have  the  bill  of  lading  in  his  hand,  he  should 
transfer  it  to  the  vendee,  as  a  specification,  and  constructive  possession  of 
the  goods.  When  he  has  not  the  bill,  the  delivery  of  any  other  specification 
of  the  property  sold,  will  answer  the  same  purpose  ;  and  it  was  consequently 
decided,  that  the  transfer  of  the  invoice,  with  an  assignment  of  the  goods, 
therein  specified,  indorsed  on  the  back,  was  a  complete  execution  of  the 
sale,  by  delivery  of  constructive  possession.  In  the  subsequent  case  of 
D'Wolf  V.  Harris,  4  Mason,  515,  it  was  held  by  Storv,  J.,  that  the  right  of 
property  in  goods  at  sea,  might  be  passed  by  sale  or  assignment,  unaccom- 
panied by  an  indorsement  of  the  bill  of  lading,  although  perhaps  liable  to 
be  divested  in  favour  of  a  bona  fide  purchaser  for  value,  whose  title  is  pro- 
tected by  such  indorsement, 

It  necessarily  follows  from  the  principles  laid  down  in  these  cases,  that 
where  there  have  been  contracts  of  sale  of  the  same  goods,  made  by  the 
owner,  at  the  same  time,  with  two  different  persons,  he  who  first  receives 
constructive  delivery  of  possession,  by  the  indorsement  of  the  bill  of  lading, 
will  have  the  legal  title  to  the  property.  Caldwell  v.  Ball,  1  Term,  205. 
To  borrow  an  analogy  from  the  common  law,  its  effect  in  ihis  respect  may 
be  likened  to  that  of  an  attornment,  which,  as  between  two  grantees  of  a 
reversion,  gave  the  right  of  property  to  him  who  first  received  it,  although 
claiming  under  a  subsequent  grant. 

In  order  however,  to  determine  more  fully,  the  real  effect  on  the  transfer 
of  property,  of  the  indorsement  of  a  bill  of  lading,  it  will  be  necessary  to 
examine  the  principles  of  law  by  which  that  transfer  is  regulated,  under 
ordinary  circumstances. 

That  no  right  of  property  is  created  in  a  vendee,  by  a  bona  fide  sale  made 
to  him  for  a  valuable  consideration,  by  a  person  having  possession  of  chattels 
personal,  without  property  or  authority  to-  sell,  though  too  well  established 
in  English  law,  to  have  been  often  called  in  question,  was  yet  asserted  or 
determined  in  Hartop  v.  Hoare,  1  AVilson,  8,  S.  C,  2  Str.  1187,  Wilkinson 
v.  King,  2  Campbell,  335,  Peer  v.  Humphrey,  2  Adol.  &  Ell.  295,  and 
Williams  v.  Barton,  3  Bingh.  139. 

There  are  indeed  only  two  grounds  on  whicli  property  can  be  supposed 
to  arise  in  the  vendee,  in  consequence  of  a  sale  made  by  a  vendor,  who  has 
not  such  property  in  himself.     The  first  of  these  supposes  a  transfer  of  the. 
former  title  of  the  true  owner,  by  virtue  of  some  authority  from  him  ;  the 


652  smith's  leading   cases. 

second  a  creation  of  a  new  and  independent  title  in  the  vendee,  growing  out 
of  the  circumstances  attendant  upon  the  sale,  such  as  the  possession  of  the 
property  by  the  vendor,  the  bona  fide  character  of  the  transaction  on  the 
part  of  the  vendee,  and  the  valuable  consideration  given  by  him.  From 
these  circumstances  the  conclusion  is  supposed  to  follow,  that  since  one  of 
two  innocent  parties  must  suffer,  the  loss  should  fall  upon  the  owner,  who 
by  intrusting  the  vendor  with  possession  of  his  goods,  has  enabled  him  to 
commit  the  fraud,  rather  than  upon  the  vendee,  who  is  presumed  to  have 
acted  in  good  faith  and  with  proper  caution.  This  latter  principle,  if  it 
existed,  should  be  applicable  to  the  case  where  a  factor  has  been  entrusted, 
not  merely  with  the  possession  of  chattels  and  the  indicia  of  property  in 
such  chattels,  but  with  authority  to  sell  them,  and  to  sell  them  as  his  own, 
and  who  being  in  this  manner  not  merely  enabled,  but  permitted  by  the 
owner  to  hold  himself  out  to  the  world  as  having  the  property  in  his  own 
right,  has  proceeded  to  contract  with  parties  who  have  advanced  money  on 
the  faith  of  such  ownership,  and  a  deposit  of  the  goods  in  pawn.  It  is 
however,  well  known  that  there  have  been  repeated  and  express  decisions, 
that  those  parties  took,  under  their  contracts  of  pledge,  no  rights  whatever 
to  the  goods  as  against  the  real  owner ;  not  even  those  of  the  factor.  These 
cases  could  not  have  been  so  decided,  had  the  English  law  recognised  the 
principle,  that  the  owner  who  permitted  chattels  to  which  he  had  title,  to 
be  dealt  with  as  if  belonging  to  the  agent,  would  be  bound  as  it  respected 
such  chattels,  by  the  agent's  acts,  since  it  is  very  evident  that  the  principle 
would  necessarily  extend  to  all  contracts,  made  for  valuable  consideration 
by  the  agent  with  third  parties,  who  were  deceived  in  supposing  the  agent 
to  be  the  owner,  whether  those  contracts  were  for  transferring  an  absolute, 
or  qualified  property  in  the  chattels.  But  on  the  other  and  true  doctrine, 
under  which  the  power  of  agents  in  possession  of  chattels,  to  transfer  to 
vendee  the  right  of  property  in  the  chattels,  is  bounded  by  the  strict  limits 
of  the  authority  received  from  the  owner,  it  necessarily  followed,  that  when 
a  factor  pawned  the  goods  which  he  had  merely  authority  to  sell,  the  pledge 
was  invalid. 

It  is  hardly  necessary  to  say,  that  these  cases  are  not  less  applicable, 
because  relating  to  contracts  made  by  factors,  and  that  there  is  no  particular 
class  of  men  in  commerce,  known  by  that  name,  exclusively  pursuing  a 
particular  business,  and  as  such  subject  to  particular  rules  of  law,  as  it 
respects  their  general  contracts,  independently  of  the  particular  relations,  in 
which  they  may  happen  to  stand  to  the  parties.  Any  man  entrusted  with 
the  possession  of  goods,  and  authority  to  sell  them,  is  as  respects  those  goods 
a  factor  ;  nor  will  the  general  habit  of  acting  as  a  factor,  give  an  agent  that 
character  or  the  rights  which  flow  from  it,  with  respect  to  goods  which  are 
put  in  his  possession,  without  authority  to  sell.  Monk  v.  Whittenbury,  2 
Barn.  &  Ad.  484.  This  is  evident  moreover,  from  a  reference  to  the  cases, 
determining  that  a  vendee  from  a  factor  may  set  off  a  debt  due  from  the 
latter,  in  a  suit  brought  by  the  owner,  for  if  the  commercial  agents  spoken 
of  in  these  cases  as  factors,  had  been  generally  known  as  pursuing  the 
business  of  selling  on  commission  for  others,  there  could  not  have  existed 
the  complete  ignorance,  that  the  right  of  property  was  in  another  than 
the  vendor,  which  according  to  the  English  decisions  and  the  case  of  Hogan 
V.  Shorb,  24  Wendell,  460,  is  requisite  to  give  a  right  of  set  off  against  the 
owner. 


LICKBARROW    V.    MASON.  653 

It  may  however  be  well  to  refer  to  the  case  of  M'Combie  v.  Davis,  6  East, 
538,  7  East,  5,  in  order  to  show,  that  the  cases  deciding  that  a  factor  having 
possession  of  property,  with  authority  to  sell,  cannot  make  a  valid  pledge, 
establish  the  general  principle,  that  such  a  pledge  made  by  any  agent 
entrusted  with  a  specific  parcel  of  goods,  and  a  like  authority,  though  never 
before  having  acted  as  a  factor,  would  be  equally  invalid.  In  that  case  a 
broker  who  had  however  been  in  the  habit  of  dealing  in  tobacco  on  his  own 
account,  purchased  a  quantity  of  it  in  his  own  name,  and  had  it  entered  as 
his  in  the  king's  warehouse.  He  subsequently  pledged  the  tobacco  as  his 
own  property,  and  for  valuable  consideration,  to  the  defendant,  agflinst 
whom,  the  real  owner,  on  whose  account  the  original  purchase  had  been 
made,  brought  trover.  The  question  whether  the  owner  of  goods,  who 
has  entrusted  them  to  the  possession  of  anagent,- under  circumstances  which 
enable  the  agent  to  impress  other  parties  with  the  belief  that  he  is  the  owner,  - 
will  be  bound  by  the  contracts  of  the  agent,  was  here  presented  free  from 
the  complication,  which  the  character  of  factor,  and  the  existence  of  autho- 
rity to  sell,  may  be  thought  to  produce  ;  and  the  court  determined,  that  in 
the  absence  both  of  properly  an'd  authority,  in  the  broker  who  had  made  the 
pledge,  the  plaintiff  was  entitled  to  maintain  his  action.  To  the  same  effect 
are  the  principles  set  forth  by  the  Exchequer  Chamber,  in  delivering  their 
opinion,  in  the  case  of  Williams  v.  Barton,  3  Bing.  139. 

The  doctrine  that  possession  not  merely  of  chattels  personal,  but  of  the 
indicia  of  property  in  those  chattels,  with  the  consent  of  the  owner,  even 
when  accompanied  with  an  authority  from  him  to  the  party  so  in  posses- 
sion, to  sell  the  chattels  as  his  own,  will  not  enable  such  party  to  go  beyond 
his  authority,. and  create  any  title  in  a  bona  fide  vendee  for  value  under 
him,  by  the  mere  force  of  the  circumstances  of  the  transaction,  was  most 
forcibly  illustrated  by  the  case  of  Guerreirro  v.  Peile,  3  Barn.  &  Aid.  616. 
In  that  case  the  plaintiffs  had  entrusted  Burmester  and  Vidal,  merchants 
resident  in  London,  not  merely  with  the  indiciae  of  property  in  certain  wine, 
but  with  possession  of  the  wine,  and  a  general  authority  to  sell  it,  and  now 
brought  trover  against  the  defendants,  who  in  consideration  of  a  quantity  of 
rum  given  in  barter,  had  purchased  the  wine  from  Burmester  and  Vidal, 
believing  it  to  be  their's.  If  any  combination  of  circumstances,  short  of 
actual  fraud  in  the  owner,  could  have  given  independently  of  authority  from 
him,  a  bona  fide  purchaser  for  value  a  right  of  property  in  the  thing  sold, 
the  defendants  in  this  action,  would  have  been  entitled  to  a  judgment.  It 
was  however  decided,  that  the  authority  of  the  vendors,  Burmester  and 
Vidal  did  not  extend  to  making  a  sale  for  any  other  consideration  than 
money,  and  that  consexjuently  the  right  of  the  plaintiffs  to  recover,  was  not 
divested  by  the  transaction. 

This  case,  as  well  as  those  already  referred  to,  in  which  pledges  made 
by  factors  entrusted  with  the  apparent  ownership  of  property,  have  been 
set  aside,  plainly  show  that  under  the  common  law  a  transfer  of  properly, 
when  not  made  by  the  owner  himself,  can  only  be  effected  by  virtue'  of 
some  authority  derived  from  him,  for  if  any  rights  could  grow  merely  out 
the  possession  of  property,  and  a  sale  for  a  valuable  consideration  to  a  bona, 
fide  vendee,  they  would  extend  to  sales  by  barter,  as  well  as  to  sales  for 
cash,  and  to  qualified  transfers  of  property  by  way  of  pawn,  as  well  as  to 
absolute  transfers  by  sale.     Such,  while   regretting  that  it  so  existed,  was 


654  smith's  leading    cases. 

unequivocally  declared  to  be  the  common  law  of  England  by  Best,  C.  J.,  in 
deciding  the  case  of  Williams  v.  Barton,  3  Bing,  139. 

The  case  of  Monk  v.  Whittenbury,  2  Barn.  &  Ad.  484,  is  perhaps  the 
one,  which  most  directly  determines,  that  a  bona  fide  purchaser  from  a  fac- 
tor, who  has  the  possession  and  apparent  ownership  of  property,  but  without 
authority  to  sell,  will  not  take  any  title  as  against  the  true  owner.  It  was 
there  determined,  that  a  sale  made  by  an  agent  entrusted  with  flour,  to  a 
bona  fide  purchaser  without  notice,  did  not  pass  any  property  in  the  flour, 
although  the  agent  was  in  the  habit  of  doing  business  as  a  flour  factor.  The 
court  held,  that  the  case  did  not  come  within  the  remedial  provisions  of  the 
statute  6  George  4,  and  did  not  even  admit  a  doubt  as  to  the  invalidity  of 
such  a  sale  at  common  law.  In  the  case  of  Evans  v.  Truman,  2  Barn.  & 
Ad.  886,  this  doctrine,  under  circumstances  of  a  similar  character,  was 
again  applied.  A  broker,  in  possession  of  India  warrants  belonging  to  the 
plaintiffj  yvhich  under  the  custom  of  merchants  now  prevailing  in  England, 
amounts  to  a  constructive  possession  of  the  goods,  had  by  a  contract  in  wri- 
ting, sold  them  together  with  the  property  they  represented,  to  the  defendant. 
It  was  held  that  the  latter,  to  avail  himself  of  the  aid  of  the  statute  above 
referred  to,  must  produce  the  written  contract,  and  failing  in  this,  that  the 
case  stood  at  common  law,  under  which  he  could  have  no  title. 

In  like  manner,  where  an  agent  of  the  plaintiff  had  purchased  on  his 
own  account  indigo  lying  in  the  warehouses  of  the  East  India  Company, 
and  obtained  constructive  possession  by  receiving  the  dock  warrants,  which 
from  their  form  and  the  custom  of  trade,  would  be  negotiable,  were  it  possi- 
ble for  any  instrument  not  for  the  payment  of  money  to  have  that  character, 
it  was  held  by  the  King's  Bench,  without  regard  to  the  case  stated,  which 
set  them  forth  as  negotiable,  that  by  their  subsequent  deliver}''  and  indorse- 
ment to  the  defendants,  by  the  agent  as  his  own  property,  though  accom- 
panied by  an  authority  from  him  to  sell,  and  made  for  valuable  consideration, 
no  right  of  property  or  sale  was  passed,  and  that  the  defendants  having 
sold,  were  liable  lo  the  plaintiff".  It  was  admitted,  that  by  one  of  the  sections 
of  the  6  Geo.  4,  c.  94,  they  acquired  by  the  delivery,  a  right  to  hold  for  the 
amount  due  from  the  plaintiff' to  the  agent,  which  they  would  not  have  had 
at  common  law,  but  although  without  notice  of  the  true  owner,  as  they  did 
not  bring  themselves  within  the  provisions  of  that  act  authorising  a  sale, 
they  were  held  not  entitled  to  dispose  of  the  indigo  as  against  him,  by  the 
authority  from  the  agent  to  whom  it  apparently  belonged.  The  court  does 
not  appear  to  have  considered  as  worthy  of  examination,  the  question, 
whether  the  indorsement  of  the  dock  warrants  could  give,  at  common  law, 
to  a  bona  fide  indorsee  for  value,  a  greater  right  against  third  parties  than 
was  possessed  by  the  indorser,  Taylor  v.  Kymer,  3  Barn.  &  Ad.  320.  It 
may  be  observed,  that  without  doubt,  where  property  is  stored  in  warehouses 
not  belonging  to  the  vendor,  and  it  is  not  conveniently  susceptible  of  actual 
delivery,  the  documents  whereby  its  possession  is  acknowledged  or  its 
delivery  ordered,  may  serve,  as  would  the  key  of  the  warehouse,  to  effect  a 
constructive  delivery,  and  create  a  constructive  possession,  which  will,  how- 
ever, only  be  valid  as  it  regards  the  parties  by  whom  actual  possession  has 
not  been  obtained.  Thus  in  the  present  case,  the  defendants  were  held 
entitled  to  retain  on  lien,  and  by  virtue  of  an  authority  from  the  agent  to  sell 
certain  other  indigo  which  they  had  purchased  for  him,  although  he  was 


LICKBARROW     V.     MASON.  655 

in  reality  acting  on  commission  from  the  plaintiff.  As  they  received  and 
kept  the  dock  warrants  at  the  time  of  the  purchase,  and  no  actual  dtdivery 
of  the  indigo  had  ever  been  effected,  they  were  said  to  have  a  constructive 
possession,  sufficient  to  support  a  lien  for  the  purchase-money  advanced, 
and  the  same  right  of  set-off  against  the  unknown  principal,  as  that  of  the 
purchaser  from  a  factor  selling  in  his  own  name. 

The  same  general  principle  of  law,  that  no  one  can  transfer  to  another,  a 
better  title  than  he  has  himself,  was  applied  by  the  Supreme  Court  of  New 
York  in  the  case  of  Andrew  v.  Dietrick,  14  Wendell,  .31.  In  that  case  an 
auctioneer  who  had  dealt  with  the  owner  of  a  house,  in  which  the  carpets 
were  down,  as  if  he  were  the  owner  of  the  carpels,  and  had  advanced 
money  on  them,  was  held  to  have  acquired  no  title,  although  the  true  owner 
had  delivered  them  to  the  party  in  whose  possession  they  were,  on  a  con- 
tract of  sale  at  so  much  per  yard.  This  contract  only  required  to  make  it 
absolute,  that  the  quantity  of  carpet  requisite,  which  had  since  b^en  ascer- 
tained, though  unknown  at  the  time  of  delivery,  should  be  communicated  to 
the  owner  of  the  carpet  and  the  price  paid  ;  until  this  was  done,  it  was  held 
that  as  between  vendor  and  vendee,  no  property  passed,  and  that  indepen- 
dently of  the  right  of  property,  the  person  in  possession  of  chattels,  could 
not  create  a  title  to  them  in  others. 

In  Everett  v.  Saltus,  decided  by  the  Supreme  Court  of  New  York  ;  and 
again  in  the  Court  of  "Errors,  the  same  general  principle  was  applied  to  the 
case  of  a  sale  by  a  party  in  possession,  not  merely  of  property,  but  of  the 
indicia  of  property,  (the  bill  of  lading  endorsed  in  blank  ;)  but  who  had  not 
received  those  indicia  with  the  consent  of  the  true  owner.  15  Wendell, 
475  ;  20  Wendell,  268.  The  same  point  was  also  determined  in  Williams 
v.  Merle,  11  Wendell,  804,'where  a  sale  was  made  by  a  party  in  possession 
of  goods,  who  had  fraudulently  caused  an  inspector's  certificate  for  them  to 
be  made  out  in  his  own  name. 

In  Easton  v.  Worthington,  5  Sergeant  &  Rawle,  130,  the  Supreme  Court 
of  Pennsylvania  decided,  that  a  party  who  proved  the  title  to  chattels  per- 
sonal to  be  in  himself,  had  a  right  to  recover  them,  whether  the  act  of  the 
party  who  sold  them,  without  having  either  property  or  authority  to 
sell,  was  felonious  or  merely  fraudulent.  Subsequently  the  same  Court 
decided  that,  under  a  sale  made  by  an  agent,  of  property  not  entrusted  to 
him  for  sale,  no  property  could  arise  to  the  vendee.  Leckey  v.  M'Dermot, 
8  Sergeant  &  Rawle,  500.  These  cases,  when  taken  in  connection  with 
that  of  Hosack  v.  Weaver,  1  Yeates,  478,  must  be  considered  as  showing, 
that  the  common  law  has  on  this  point  remained  unchanged  in  Pennsylvania. 

It  would  perhaps  have  been  sufficient,  in  order  to  establish  the  doctrine, 
that  a  possessor  of  chattels  personal  cannot  transfer  to  another  a  greater  title 
than  he  has  himself,  to  have  pointed  out,  that  the  opposite  doctrine  would 
impress  upon  all  personal  property  that  stamp  of  negotiability  which,  even 
in  the  case  of  promissory  notes,  was  so  averse  to  the  genius  of  the 
common  law  as  to  require  a  statute  for  its  introduction. 

But  while  no  one  who  has  examined  the  subject,  will  contend,  that  a 
negotiable  character  can,  by  any  combination  of  circumstances,  be  attached 
to  chattels  personal  in  themselves, (a)  the  opinion  may  find  more  supporters, 

(a)  See  the  remarks  of  Cowen,  J.,  I  Hill,  306,  against  the  application  of  analogies 


65&  smith's   leading   cases. 

that  this  character  belongs  to  bills  of  lading  and  certain  other  documentary 
evidences  of  title  in  such  chattels,  which  of  late  years  have  grown  into  very 
extensive  use  in  the  commercial  world,  as  the  means  of  ascertaining  and 
transferring  title  to  personal  property. 

That  this  capacity  for  negotiation  does  not  belong  to  these  documents  in 
general  as  a  class,  is  evident  from  the  statute  6  Geo.  4,  chap.  94,  which  in 
certain  cases  renders  them  negotiable,  and  from  the  decision  in  Evans  v. 
Truman,  2  Barn.  &  Adol.  886,  which  determines  with  regard  to  East  India 
Warrants,  one  of  the  most  important  of  the  class,  that  where  the  provisions 
of  the  statute  do  not  apply,  there  is  no  negotiability  at  common  law. 

An  equally  strong  argument  against  the  negotiability  of  bills  of  lading, 
may  be  drawn  from  the  tenor  of  the  Pennsylvania  act  of  assembly,  of  April 
14,  1834,  with  respect  to  factors  ;  which  renders  valid  all  contracts  for  the 
"deposile  or  pledge  of  merchandise,"  made  between  a  "Consignee  or  factor 
having  p^session  of  such  merchandise  with  authority  to  sell  the  same,  or 
having  possession  of  any  bill  of  lading,  permit,  certificate,  receipt  or  order 
for  the  delivery  of  merchandize  with  the  like  authority,''''  and  parties  with- 
out notice,' that  the  factor  is  not  the  actuaj'owner  of  such  merchandise.  The 
act  consequently  declares  by  implication,  that  in  the  absence  of  such  autho- 
rity, contracts  for  passing  a  qualified  property  are  not  valid,  and  a  fortiori, 
that  an  absolute  property  shall  not  pass  under  such  conli^cts.  The  words 
of  this  section  negative  moreover  by  implication,  the  impression  which  is 
very  Gommonly  entertained,  that  where  a  factor  is  in  possession  of  goods, 
the  additional  circumstance  of  possessing  th^- bill  of  lading  will  give  him 
authority  to  make  a  good  title  to  the  goods,  by  sale  for  valuable  considera- 
tion without  notice.  This  conclusion  necessarily  follows  from  the  fact,  that 
while  the  only  requisite  demanded  by  the  act  for  making  good  the  passage 
of  a  qualified  property  by  pledge,  to  a  party  without  notice,  is  the  right  in 
the  factor  to  transfer  an  absolute  property  by  sale,  it  yet  requires  the  exist- 
e-nce  of  an  authority  to  sell,  even  in  addition  to  the  possession  of  the  goods, 
and  the  bill  of  lading. 

The  whole  of  the  argument  against  the  negotiability  of  the  bill  of  lading 
may  be  summed  up  in  a  single  sentence,  by  saying  that  to  impress  a  cha- 
racter so  new  and  extraordinary  upon  an  instrument  not  for  the  payment  of 
money,  requires  the  authority  of  at  least  one  decision,  while  no  such  deci- 
sion can  be  found.  It  can  be  hardly  necessary  to  repeat,  that  Lickbarrow 
V.  Mason,  and  the  whole  class  of  cases  which  have  been  based  upon  it,  only 
apply  where  the  consignor  has  parted  with  the  title  to  goods  to  the  con- 
signee, or  invested  the  latter  with  full  power  to  transfer  that  title  to  third 
parties,  and  the  latter  have  acquired  the  right  of  property:,  by  a  bona  fide 
purchase.  Under  such  circumstances  where  the  right  of  property  has 
passed  by  the  sale,  the  indorsement  of  the  bill  of  lading  to  the  purchaser  by 
the  consignor,  whether  directly  or  through  the  means  of  an  indorsement  to 
the  consignee,  and  re-indorsement  by  him,  will  be  held  to  give  constructive 
possession  of  the  goods,  and  thus  defeat  the  right  of  stoppage  in  transitu. 
It  thus  appears,  that  the  law  in  relation  to  the  indorsement  of  bills  of  lading, 
does  not  render  them  negotiable,  nor  form  an  exception  to  the  general  rule, 

drawn  from  the  negotiability  of  commercial  instruments  to  tlic  transfer  of  title  in  chattels 
personal. 


LICKBARROW     V.     MASON.  657 

that  a  party  haA-ing  neither  property  nor  authority  ia  himself,  cannot 
transfer  property  to  another,  but  merely  an  exception  to  the  rule,  that  when 
property  has  passed,  an  unpaid  vendor  on  the  faiUire  of  the  vendee  and 
consignee,  may  stop  in  transitu;  an  exception  and  a  rule,  which  have 
nothing  to  do  with  negotiability. 

The  view  of  the  law  here  taken,  is"  fully  sustained  by  the  recent  case  of 
Thompson  v.  Dorainy,  14  M.  &  W.  402.  The  plaintiff  had  there  allowed 
himself  to  be  sufficiently  influenced  by  the  various  dicta  to  be  found  in  the 
books,tbat  a  bill  of  lading  is  negotiable,  to  bring  an  action  in  special  assumpsit, 
as  indorsee  of  the  bill,  against  the  owners  of  the  vessel,  on  the  contract  to 
deliver  the  goods  to  the  consignor  or  his  assigns,  which  was  set  forth  on, its 
face.  But  it  was  held  by  the  court,  that  although  such  an  indorsement  for 
valuable  consideration  as  was  set  forth  in  the  declaration,  might  enure  to 
pass  the  property  in  the  goods  to  which  it  referred,  to  the  indorsee,  j'^et  that 
it  could  not  avail  to  give  him  an  interest  in  the  contract  evidenced  by  the 
bill,  or  a  right  to  sustain  an  action  upon  it  in  his  own  name.  In  coming  to 
this  determination,  the  court  relied  upon  the  opinion  expressed  by  Lord 
Ellenborough,  in  Waring  v.  Cox,  1  Camp.  369,  who  there  declared  that 
"  no  case  had  gone  so  far  as  to  decide  that  a  bill  of  lading  was  transferable 
like  a  bill  of  exchange,  or  that  the  mere  signature  of  the  person  entitled  to 
the  delivery  of  the  goods  primg.  facie,  passed  the  property  in  them  to  the 
indorsee." 

Nor,  on  reflection  shall  we  find  any  reason  to  be  dissatisfied  with  that 
inflexible  strictness  of  the  common  law,  in  declaring  Nemo  plus  juris  quam 
in  se  habet,  in  alienuni  transferre  potest.  In  the  case  of  certain  choses  in 
action,  negotiability  might  be  admilledj  because  the  evidence  of  the  debt  is 
the  debt  itself ;  or,  at  least  the  latter  has  Ho  separate  physical  existence, 
apart  from  the  former.  Even  there  negotiability  is  confined  to  those  instru- 
ments, which  represent  money,  a  thing  negotiable  in  itself,  and  of  which 
the  title  always  passes  by  delivery  on  sufficient  consideration.  Of  course 
it  should  not  be  extended  to  bills  of  lading,  and  other  documents  represent- 
ing chattels  not  negotiable.  But  to  give  a  negotiable  character  to  the. evi- 
dences of  properly  in  chattels  personal,  would  be,  in  effect,  to  attach  it  to 
the  chattels  themselves,  and  however  much  there  may  be  of  plausibility, 
there  is  but  little  force  in  the  argument,  which  urges  that  where  one  of  two 
innocent  parties  must  suffer,  the  loss  should  fall  upon  him  who  has  entrusted 
the  fraudulent  vendor  as  his  agent,  with  the  possession  of  goods,  and  has 
permitted  him  to  gain  credit  for  owning  that  to  which  he  never  has  been 
entitled,  rather  than  upon  an  innocent  purchaser,  who  has  bought  on  the 
faith  of  such  ownership.  The  necessities  of  commerce  require,  that  agents 
should  not  merely  be  entrusted  with  the  possession,  but  with  the  apparent 
property  in  goods,  under  circumstances  which  render  it  impossible  to  prove, 
whatever  be  the  reality,  that  the  vendees  from  such  agents,  have  had 
notice  of  the  title  of  the  true  owner.  To  compel  Imn  to  prove  notice,  would, 
in  the  case  of  chattels  personal,  still  more  than  in  that  of  choses  in  action, 
place  him  at  the  mercy  of  every  fraud  between  his  agent  and  the  vendee  ; 
which  even  if  made  out  through  the  obscurity  of  the  past,  to  the  satisfac- 
tion of  ordinary  observers,  could  seldom  be  established,  by  the  strictness  of 
legal  proof. 

Moreover,  while  the  vendee  continues  to  be  within  the  danger  of  the 
Vol.  I.— 42 


658  smith's   leading   cases. 

maxim,  caveat  emptor,  and  to  be  held  to  ascertaining  at  his  peril,  that  the 
party  from  whom  he  purchases,  has  either  properly  or  authority  to  sell,  he 
may  be  led  to  observe  and  take  advantage  of  a  great  variety  of  circum- 
stances, which  if  followed  up,  would  serve  as  clues  to  lead  him  to  a  disco- 
very of  the  truth,  but  which  he  might  entirely  disregard,  under  the  temp- 
tation of  a  good  bargain,  were  it  once  to  be  established  at  law,  that  to  render 
him  liable  to  the  owner,  there  must  not  only  be  actual  notice  of  the  owner- 
ship, but  proof  of  that  notice. 

On  the  whole,  therefore,  it  would  appear,  that  the  best  safeguard  against 
the  frauds  of  agents,  who  are  entrusted  with  ihe  property  of  others,  is  the 
actual  disability  which  the  common  law  has  attached  to  all  their  transac- 
tions stepping  beyond  the. bounds  of  their  authority,  and  which  enlists  the 
interests  of  those  with  whom  they  deal,  on  the  side  of  discovering  the 
intended  fraud,  before  its  perpetration,  as  the  opposite  principle  of  negotia- 
Jbility,  disposes  the  same  interest  to  facilitate  the  fraud  at  the  time,  and  con- 
ceal it  afterwards. 

Although  the  party  in  possession  of  goods,  can  never  pass  the  title  to 
them  as  against  the  true  owner,  yet  whenever  the  latter  has  parted  with 
the  right  of  property,  subject  to  his  lien  for* the  purchase-money,  and  has 
afterwards  been  induced  by  a  fraud,  to  waive  that  lien  and  give  up  posses- 
sion to  the  vendee  before  payment,  the  latter  may  defeat  the  right  of  regain- 
ing possession,  which  as  against  himself  would  be  undoubted,  by  a  bona 
fide  sale  for  value  to  a  third  person.  Mowrey  v.  Walsh,  8  Cowen,  238  ; 
Buffington  V.  Gerrish,  15  Massachusetts,  158;  Hoffrnan  v.  Noble,  6  Met- 
calf,  68.  It  cannot  however  be  too  often  repeated,  that  in  this  case,  as  in 
the  analogous  one  of  the  defeasance  of  the  right  of  stoppage  in  transitu  as 
decided  in  Lickbarrow  v.  Mason,  it  is  the  original  sale  by  the  vendor,  which 
divests  his  right  of  property,  and  that  he  is  merely  deprived  by  the  act  of 
the  vendee,  o4  his  power  of  rescinding  the  sale  and  recovering  the  goods, 
which  is  good  as  between  the  original  parties,  but  not  as  against  third  per- 
sons.    Rowley  v.  Bigelow,  12  Pickering,  307. 

In  the  case  of  Pickering  v.  Busk,  15  East,  38,  the  purchaser  of  hemp 
had,  at  the  time  of  the  purchase,  given  orders  in  person,  that  it  should  be 
transferred  on  the  books  of  the  warehouse,  from  the  name  of  the  vendor  to 
the  name  of  the  broker  ;  and  a  subsequent  sale  by  the  latter,  without  farther 
proof  of  authority,  was  held  valid  against  the  first  purchaser,  in  consequence 
of  the  particular  course  of  conduct  adopted  by  the  latter.  This  case, 
although  an  apparent  exception  to  the  rule,  that  title  cannot  be  transferred 
by  parties  not  possessing  either  property  or  authority,  will  be  found  in 
entire  accordance  with  it  in  realilj^  Independently  of  the  fraud  to  which 
the  conduct  of  the  purchaser  amounted,  if  acting  with  any  other  intention 
than  that  of  conferring  on  the  broker  the  right  to  sell  ;  it  would  seem  that 
the  legal  title  to  the  hemp  was  actually  vested  in  the  latter.  Whatever 
might  be  the  trust  as  between  him  and  the  purchaser,  and  although  the 
beneficial  interest  may  have  vested  in  the  latter,  it  is  difficult  to  believe,  that 
the  law  could  consider  him  as  having  the  right  of  property,  since  the  only 
evidence  with  regard  to  the  transfer  of  the  title,  consisted  in  the  entry  by 
which  it  was  virtually  declared  to  be  in  the  broker  ;  and  it  is  believed  that, 
whether  with  regard  to  sales  of  real  or  personal  property,  the  intention  of 
the  parties  will  not  be  allowed  to  contradict  the  evidence  of  their  acts,  at 


LICKBARROW     V.     MASON.  659 

least  where  the  interests  of  third  persons  are  concerned.  It  may  conse- 
quently be  thought,  that  the  subsequent  sale  by  the  broker  operated  to 
transfer  a  direct  legal  title  from  himself  to  the  subsequent  vendee  ;  and  of 
course,  the  latter  having  taken  the  goods  bona  fide  and  for  valuable  consid- 
eration, would,  in  that  case,  have  been  entitled  to  hold  them  discharged  of 
the  crust.  Such,  also,  would  appear  to  be  the  tendency  of  the  opinion 
delivered  by  Abbot,  C.  J.,  upon  the  similar  state  of  facts,  which  was 
brought  before  the  Court  of  King's  Bench  in  the  case  of  Dyer  v.  Pearson, 
3  Barn.  &  Cres.  38. 

It  must  however  be  stated,  that  in  Pickering  v.  Busk,  Lord  Ellenbo- 
ROUGH  rested  his  decision,  not  upon  the  existence  of  title  in  the  broker,  but 
upon  the  ground  that  an  implied  authority  to  sell  might  be  presumed  against 
the  owner;  since  his  conduct  was  fraudulent,  if  he  did  not  intend  that  the 
party  to  whose  name  he  ordered  a  transfer  of  the  tobacco,  should  have  the 
right  to  dispose  of  it  as  his  own. 

The  cases  of  Zwinger  v.  Samuda,  and  Lucas  v.  Dorrein,  7  Taunton,*263. 
278,  proceed  evidently  upon  the  same  ground  of  title  and  authority  in 
the  parties,  by  whom  the  transfers  of  property  there  held  valid,  were  made. 
The  latter  of  these  cases  was  simply  a  pledge  by  the  owner ;  which  being 
accompanied  with  a  constructive  delivery  of  goods  lying  in  a  warehouse, 
and  not  susceptible  of  actual  delivery,  was  held  valid  against  his  assignees, 
claiming  by  force  of  a  subsequent  act  and  commission  of  bankruptcy.  In 
the  former  case  the  defendant,  into  whose  name  goods  lying  in  the  West 
India  Docks  had  been  transferred  by  the  owner,  on  receiving  a  check  for 
the  amount  of  the  debt,  which  the  transfer  had  been  made  to  secure,  gave  to 
the  latter  with  the  view  of  facilitating  and  authorising  a  sale,  an  order  for 
the  delivery  of  the  goods,  endorsed  on  the  dock  warrant  by  which  the  prior 
constructive  delivery  to  himself  had  been  effected.  Under  these  circum- 
stances the  plaintiffj  who  purchased  the  goods  from  the  owner,  was  held  to 
take  them  free  from  the  lien  of  the  defendant,  notwithstanding  a  fraudu- 
lent refusal  to  pay  the  check.  There  can  be  no  doubt  of  the  propriety  of 
this  decision  under  the  circumstances,  since  independently  of  the  fact  that 
the  lien  holder  had  surrendered  his  constructive  possession  by  giving  up  the 
symbol,  which,  as  would  have  done  the  key  of  the  warehouse,  represented 
the  possession,  his  order  for  delivery  amounted  to  full  authority  to  the  owner 
to  pass  an  unincumbered  title.  The  language  of  the  court  does  not  seem  as 
capable  of  being  supported,  and  it  must  be  regarded  as  merely  the  dicta  of 
the  puisne  justices  of  the  C.  B. ;  Gibbs,  C.  J.,  not  being  present  in  either 
of  these  cases. 

It  would  seem,  that  from  the  cases  and  principles  stated  in  this  note,  we 
may  draw  the  following  conclusions. 

The  bill  of  lading  is  merely,  what  it  professes  to  be  on  its  face,  a  receipt 
for  goods,  given  by  a  common  carrier,  accompanied  with  a  promise  to  rede- 
liver them  to  the  bailor,  or  according  to  his  directions. 

Its  delivery  or  indorsement  have  no  effect  in  passing  property,  except  as 
evidence  of  a  sale  of  such  property,  or  as  amounting  to  a  symbolical 
delivery;  and  where  the  sale  would  have  given  a  good  title  to  the  vendee, 
in  the  absence  of  the  bill,  on  the  delivery  of  any  other  symbol  of  possession ; 
so  that  in  all  cases,  where  property  is  sold,  and  the  bill  of  lading  at  the 


660  smith's  leading   cases. 

same  time  indorsed,  it  is  the  bargain  and  sale  which  take  effect,  and  not  the 
indorsement.  Gardner  v.  Howland,  2  Pick.  599.  Between  the  original  par- 
ties to  a  consignment,  moreover,  the  indorsement  of  the  bill  is  as  ineffectual 
for  all  other  intents,  as  it  is  for  the  transfer  of  the  property,  and  merely 
serves  as  evidence  of  the  relations  between  them,  without  affecting  those 
relations  by  its  own  operation.  Its  receipt  by  the  consignee  and  vendee, 
will  not  prevent  the  consignor  and  vendor  from  exercising  his  right  of  stop- 
page in  transitu.  The  only  case  in  which  the  indorsement  and  delivery 
of  the  bill,  will  confer  a  greater  right  than  would  be  conferred  without  such 
indorsement  by  a  properly  executed  assignment  of  the  property  to  which 
the  bill  relates,  is  as  between  consignor  and  consignee  on  the  one  side,  and 
third  parties  on  the  other.  In  such  cases,  where  there  has  been  a  sale  by 
the  consignee,  which,  independently  of  the  indorsement  of  the  bill  would 
give  a  title  to  the  vendee,  as  against  the  consignor,  there  the  indorsement  of 
the  bill  will  takeaway  the  right  of  the  latter  to  a  stoppage  in  transitu,  even 
although  that  right  would  otherwise  exist.  In  like  manner,  where  between 
vendor  and  vendee,  there  have  been  circumstances  of  fraud,  which,  as 
against  the  latter,  would  authorise  the  former  to  resume  possession  of  the 
goods,  and  avoid  the  sale,  even  if  delivery  be  necessary  to  complete  the  title 
of  a  subsequent  bona  fide  purchaser,  as  against  the  vendor,  yet  the  indorse- 
ment of  the  bill  of  lading  will  amount  to  a  constructive  delivery,  if  the  posi- 
tion of  the  goods  be  such  that  no  actual  delivery  can  be  made.  On  this 
account  the  purchaser  who,  under  such  circumstances,  has  taken  an  indorse- 
ment of  the  bill,  may  be  entitled  to  hold  the  goods,  when  otherwise  he 
would  not.  Rowley  v.  Bigelow,  12  Pick.  307.  From  this  effect  of  the 
delivery  of  the  bill  of  lading,  in  amounting  to  a  constructive  possession,  has 
arisen  the  idea  of  negotiability  as  attached  to  the  indorsement  of  a  document, 
which,  so  far  from  giving  a  greater  right  of  property  to  the  indorsee  than 
was  held  by  the  indorser,  transfers  of  itself  no  right  of  property  whatever, 
although,  according  to  the  particular  circumstances  of  each  case,  it  may 
either  be  evidence  of  a  contract  of  sale  when  the  goods  have  arrived,  or 
amount  to  a  constructive  delivery,  in  pursuance  of  such  contract,  while  they 
are  yet  at  sea.  It  is  true,  that  in  the  absence  of  an  indorsement  of  the  bill 
of  lading,  a  sale  for  value,  made  of  goods  not  yet  received  by  the  vendee, 
will  not  be  sufficient  to  divest  the  right  of  stoppage  in  transitu.  Craven  v. 
Ryder,  6  Taunton,  433.  This,  however,  depends  upon  reasons,  entirely 
unconnected  with  the  presence  of  a  negotiable  character  in  the  bill.  When 
the  consignee  does  not  indorse  the  bill  of  lading,  to  a  party  making  a  pur- 
chase of  goods  which  have  been  sold  and  shipped,  but  which  have  not  been 
paid  for,  and  have  not  yet  arrived  in  port,  it  must  be  considered  as  construc- 
tive notice  to  him,  that  the  consignee  has  not  been  entrusted  with  the  bill 
by  the  consignor,  and  consequently,  that  the  latter'has  not  given  up  his  con- 
trol over  the  property,  through  the  exercise  of  the  right  of  stoppage  in 
transitu.  Craven  v.  Ryder,  per  Gibbs,  C.  J.  Moreover,  the  constructive 
possession  of  goods,  conferred  by  the  possession  of  the  bill  of  lading,  is 
merely  a  fiction  of  law,  and  like  other  fictions  of  the  same  sort,  never  takes 
effect  to  defeat  the  right  of  those  originally  engaged  in  a  transaction,  as 
between  themselves,  but  is  usually  called  into  play  for  the  protection  of 
third  parties. 


L  I  («C  BARROW     V.     MASON.  661 

The  bill  of  lading  has  been  invested  with  this  character  of  symbolic  pos- 
session, when  transffrred  by  the  consignee  for  valuable  consideration,  in 
order  to  clothe  the  latter  with  the  power  of  converting  the  goods  at  once 
into  cash  before  thev  are  received,  and  thus  carrying  out  the  intentions  of 
himself  and  the  consignor.  In  this  manner,  the  parties  to  a  shipment,  by 
keeping  the  bill  of  lading  in  the  hands  of  the  consignor,  or  sending  it  to  the 
consignee,  are  enabled  to  retain  in  the  former  the  right  of  stoppage  in 
transitu  as  against  all  the  world,  or  to  divest  him  of  that  right  in  favour  of  a 
bona  fide  purchaser  from  the  consignee,  who  takes  an  indorsement  of  the 
bill  from  the  latter.  When  the  object  is  the  power  of  realizing  the  value 
of  the  goods  before  their  arrival,  the  latter  course  will  be  pursued  ;  and 
where  the  solvency  of  the  consignee  is  doubted,  the  former.  In  this  manner, 
the  right  of  stoppage  in  transitu,  may,  at  the  choice  of  the  parties,  either  be 
preserved  in  full  force,  or  be  reconciled  with  the  power  of  transferring  an 
unincumbered  title  to  property  while  at  sea,  which  would  otherwise  neces- 
sarily be  fettered  by  the  possibility  of  an  exercise  of  that  right,  from  the 
period  of  the  shipment  of  the  goods  until  that  of  their  arrival. 

In  taking  leave  of  the  effect  upon  the  transfer  of  property  in  chattels,  of 
the  indorsement  or  possession  of  the  bill  of  lading,  it  must  be  observed,  that 
this  document,  although  without  any  direct  effect  as  it  regards  title  or  autho- 
rity on  the  sale  of  goods,  is  yet,  as  evidence  of  such  title  or  authority,  of  the 
highest  importance.  Thus  when  on  a  sale  made  by  an  agent  in  possession, 
it  becomes  a  question,  whether  he  has  had  authority  frorh  the  Owner  to  sell, 
an  unrestricted  indorsement  of  the  bill  made  to  the  agent  by  the  owner, 
would  be  nearly  conclusive  evidence  before  a  jury  in  favour  of  such  autho- 
rity. 

Stoppage  in  transitu  never  arises,  save  between  vendor  and  vendee.  In 
all  other  cases,  where  goods  are  consigned  to  agents,  no  matter  how  exten- 
sive their  authority  as  factors  or  otherwise,  any  change  in  the  destination 
of  those  goods  is  in  fact  a  revocation  of  authority,  not  a  stoppage  in  transitu. 
The  Merrimack,  8  Cranch,  317.  353.  Such  a  revocation  may  be  effected 
after  the  goods  have  been  received  by  the  consignee,  as  well  as  before, 
except  in  so  far  as  his  right  of  lien  for  the  balance  of  his  accounts  as  agent 
may  have  attached  ;  and  on  payment  of  that  balance,  it  will  remain  in  full 
force  as  against' him.  It  can  be  ultimately  defeated  only  by  some  bona  fide 
transaction  between  the  agent  and  a  third  party,  done  in  pursuance  of  the 
authority  tVom  the  owner  and  consignor  ;  and  then,  because  such  act  being 
the  act  of  the  consignor  himself,  cannot  be  set  aside  by  him.  Wright  v. 
Campbell,  4  Burrow,  2046.  Nor  does  the  receipt  of  the  bill  of  lading,  alter 
the  rights  and  relations  of  the  shipper  of  goods,  with  regard  to  the  party  to 
whom  they  are  consigned.  As  betw^een  them,  it  does  not  amount  to  con- 
structive possession,  and  only  has  that  effect,  as  between  consignor  or  con- 
signee on  the  one  side,  and  third  parties  on  the  other. 

Thus,  the  receipt  of  a  bill  of  lading  by  a  factor,  to  whom  his  principal  is 
indebted,  will  not  amount  to  constructive  possession  of  such  goods,  nor  give 
a  right  of  lien  on  them  for  the  balance  of  accounts.  Ryberg  v.  Snell,  2 
Wash.  C.  C.  Reports,  403.  In  order  that  the  lien  should  attach,  the  goods 
themselves  must  come  to  the  factor's  hands  ;  and  the  owner  may  prevent 
it  from  attaching,  either  by  selling  the  goods  before  this  occurs,  to  a  third 


662  smith's   leading   ca^^es. 

party,  or  by  revoking  the  factor's  authority,  and  entrusting  them  to  another 
person.  This  revocation  may  be  effected  whether  the  factor  be  insolvent 
or  not  ;  which  clearly  shows  that  it  is  not  a  case  of  stoppage  in  transitu,  as 
that  right  never  arises,  save  in  cases  of  insolvency.  Walter  v.  Ross,  2 
Wash.  C.  C.  Reps.  283. 

In  order  to  support  the  right  of  stoppage  in  transitu,  it  is  not,  however, 
necessary  that  the  consignor  should  be  the  original  owner  of  goods,  or  have 
purchased  them  on  his  own  account.  Although  acting  as  an  agent,  for  a 
commission,  and  with  the  view  of  paying  for  them  uliimately,  with  funds 
derived  from  the  consignee,  still,  if  he  have  obtained  them  on  his  own  risk 
and  credit,  he  will,  in  the  insolvency  of  the  latter,  be  entitled  to  stop  them 
in  transitu.  Newhall  v.  Vargas,  13  Maine,  93  ;  15  Maine,  314;  Ilsley  v. 
Stubbs,  9  Mass.  65 ;  7  Mass.  457  ;  Jenkyns  v.  Usborne,  7  M.  &  G.  678. 

In  Gibson  v.  Carruthers,  8  M.  &  W.  321,  the  principle  which,  in  cases 
of  insolvency,  justifies  a  resumption  of  the  custody  of  goods,  which 
have  not  reached  the  possession  of  the  vendee,  was  resorted  to  as  a 
defence  where  they  had  never  left  that  of  the  vendor.  An  action  was 
brought  by  assignees  in  bankruptcy  to  recover  damages  for  a  failure  to  ful- 
fill a  contract  entered  into  by  the  defendants  to  ship  a  cargo  of  linseed  on 
board  a  vessel  belonging  to  the  bankrupt,  taking  bills  of  lading  in  their  own 
name,  and  receiving  payment  in  cash  upon  the  arrival  of  the  linseed  in 
London.  It  was  insisted  for  the  defendents,  that  as  the  bankruptcy  had 
intervened  before  the  period  fixed  for  the  delivery  of  the  cargo  by  them,  no 
doubt  could  exist  of  their  right  to  retain  that  possession  of  the  goods  which, 
even  if  it  had  been  parted  with,  they  would  have  been  entitled  to  regain 
under  the  circumstances  by  a  stoppage  in  transitu.  The  soundness  of  this 
reasoning  was  approved  by  Lord  Abinger,  who  held  that  the  defendants 
could  neither  be  bound  to  part  with  their  goods  without  being  paid  for  them, 
nor  to  send  a  cargo  to  a  distant,  perhaps  falling  market,  upon  the  chance 
that  the  assignees  would  provide  means  of  pa3'ment  for  it  when  there  ;  and 
also  expressed  the  opinion,  that  the  contract  was  one  of  those  which  the 
defendant  could  not  be  bound  to  fulfil  towards  persons  different  from  those 
with  whom  he  originally  contracted,  even  when  standing  in  the  position  of 
assignees  in  bankruptcy.  But  the  majority  of  the  court  differed  from  his 
lordship,  and  held  that  it  was  the  duty  of  the  defendants  to  have  sent  on 
the  cargo  in  such  a  manner  as  to  have  retained  the  control  over  it  on  its 
arrival  in  London,  and  then  to  have  been  guided  by  the  action  of  the  assig- 
nees in  delivering  it  to  the  latter,  or  selling  it  on  iheir  own  account. 

Although  the  consignor  may  have  received  part  payment  for  the  goods  in 
cash,  he  may  still  have  recourse  to  a  stoppage  in  transitu  for  the  remainder 
of  the  price.  Newhall  v.  Vargas.  Nor  will  this  power  be  aflt?cted  by  his 
receipt  and  negotiation  of  bills  of  exchange  for  the  whole  amount  of  the 
price,  although  the  period  of  maturity  of  the  bills  has  not  yet  arrived.  Bell 
V.  Moss,  5  Wharton,  189;  Newhall  v.  Vargas.  In  order  to  destroy  this 
right  as  between  consignor  and  consignee,  there  must  be  full  payment,  and 
final  delivery  of  the  whole  of  the  goods.  If  part  only  be  delivered,  the  right 
will  survive  as  to  the  rest.   Buckley  v.  Furniss,  10  Wend.  137  ;   17  Id,  504. 

Nor  will  the  right  to  stop  in  transitu  be  determined  by  the  fiact  that  the 
goods  have  reached  their  destination,  and  have  been  transferred  to  a  ware- 


LICKBARROW     V.     MASON.  663 

house  or  other  place  of  storage,  if  they  are  still  held  in  the  name  of  the  con- 
signor, although  the  consignee  has  received  full  authority  to  take  imme- 
diate possession  of  the  whole,  and  has  exercised  it  as  to  a  portion.  Thus,  in 
the  recent  case  of  Tanner  v.  Scovell,  14  M.  &  W.  28,  where  goods  shipped 
for  London  had  been  landed  at  a  wharf  and  entered  on  the  wharfinger's 
books  in  the  name  of  the  consignor,  it  was  held  that  although  he  had  given 
a  delivery  order  for  the  whole  to  the  purchaser,  under  which  the  latter  had 
received  and  sold  the  greater  part,  the  transitus  of  the  rest  might  still  be 
arrested. 

The  soundness  of  this  doctrine  was  admitted  by  BronsOiV,  C.  J.,  in  the 
case  of-  Mottram  v.  Heyer,  1  Denio,  483  ;  but  it  was  at  the  same  time  de- 
clared, that  the  right  of  stoppage  must  cease  as  soon  as  the  goods  reached 
the  termination  of  the  transitus  and  the  actual  or  constructive  possession  of 
the  consignee.  It  was  therefore  determined,  that  the  agent  of  the  vendors 
was  not  entitled  to  maintain  replevin  for  merchandize  which  he  had  claim- 
ed on  the  ground  of  the  insolvency  of  the  vendees,  after  the  freight  had 
been  paid  by  them,  and  the  property  entered  in  their  own  name  at  the 
custom-house,  although  it  had  not  come  into  their  actual  possession.  And 
such  constructive  possession  may  exist,  even  where  the  goods  are  still  in 
the  hands  of  intermediate  agents  not  professedly  acting  for  either  party,  if  it 
appear,  that  in  point  of  fact  they  hold  them  for  the  vendee,  and  that  the 
transitus  is  regarded  by  the  vendor  or  his  agents  as  at  an  end.  On  this 
ground,  it  was  held  in  Dodson  v.  Wentworth,  4  M.  &  G.  1080,  that  the 
vendor  had  no  right,  upon  being  apprised  of  the  insolvency  of  the  vendee,  to 
resume  possession  of  flax  which  he  had  despatched  to  the  latter  by  a  vessel, 
whence  it  had  been  transferred  to  the  boat  of  a  canal  company,  and  had 
finally  been  deposited  by  them  in  the  warehouse  of  another  company  merely 
for  the  purpose  of  safe  keeping  ;  it  being  shown,  that  the  purchaser  was  in 
the  habit  of  having  goods  sent  to  him,  conveyed  from  the  place  of  such, 
deposit,  at  his  own  charge,  to  his  place  of  residence.  The  case  was  rested 
on  the  ground,  that  the  final  delivery  contemplated  by  the  parties  had  been 
effected,  and  that  the  goods  had  in  effect  come  to  the  hands  of  the  person 
by  whom  they  had  been  purchased.  The  same  rule  will  also  prevail 
where  the  goods  are  still  in  the  custody  of  the  carrier  by  whom  they  have 
been  forwarded,  if  it  distinctly  appear,  that  he  has  expressly,  or  by  implica- 
tion, agreed  to  hold  them  as  agent  for  the  vendees,  and  not  on  behalf  of  the 
vendors,  for  the  purposes  of  the  transitus.  In  Wentworth  v.  Outhvv'aite,  10 
M.  &  W.  435,  this  was  held  sufficiently  established  by  evidence,  that  it  was 
the  custom  of  the  carriers  there  employed,  upon  the  arrival  of  the  goods  at 
a  town  near  the  residence  of  the  purchaser,  to  store  them  for  safe  keeping 
in  their  warehouse  until  he  sent  for  and  took  them  away  in  his  carts,  and 
that  the  goods  of  which  the  stoppage  was  in  question,  were  warehoused  un- 
der these  circumstances  at  the  time  it  was  effected. 

An  actual  possession  taken  of  part,  although  it  will  not  establish,  of  course 
willnot  preclude  an  accompanying  constructive  delivery  and  possession  of  the 
whole.  Jones  v.  Jones,  8  M.  &  W.  431  ;  Slubey  v.  Hey  ward,  2  H.  Black- 
stone,  204  ;  Hammond  v.  Anderson,  4  Bos.  &  Pul.  69.  And  on  the  other 
hand,  a  valid  stoppage  in  transitu  of  part  of  the  goods  forwarded  under  an 
entire  contract,  will  not  abrogate  the  effect  of  an  actual  or  constructive  pos- 
session acquired  by  the  consignor  of  the  residue.  Outhwaite  v.  Wentworth,* 
10  M.  &  W.  436.  451. 


664  smith's   leading  cases. 

Although  the  possession  of  the  vendee  will  defeat  the  right  of  stoppage 
in  transitu,  yet  that  possession  must  be  such  as  the  law  can  recognize  ;  arid 
unless  the  property  has  actually  come  into  the  immediate  custody  of  him- 
self or  his  agents,  it  can  only  exist  where  there  is  an  express  or  implied 
understanding  with  the  parties  entrusted  with  it  for  the  purpose  of  carriage, 
to  hold  it  absolutely  for  him,  and  not  for  the  purposes  of  the  transitus  as  ori- 
ginally contemplated.  In  thecaseof  Whitehead  V.Anderson,  9M.  &  W.  518, 
the  agent  acting  for  the  assignees  of  the  vendee,  who  had  become  bankrupt, 
went  on  board  the  vessel,  stating  that  he  came  to  take  possession  of  the 
cargo  which  he  saw  and  touched.  The  captain  promised  to  deliver  it  to 
him,  but  not  until  he  was  paid  for  the  freight  and  other  charges  due  for  the 
voyage.  Before  this  was  accomplished,  a  person,  acting  as  agent  of  the 
vendors,  came  on  board  and  delivered  to  the  mate  a  notice  of  stoppage  in 
transitu,  and  thus  brought  up  the  question,  whether  a  previous  possession 
had  been  taken  for  the  assignees.  The  judgment  of  the  court  was  deli- 
vered by  Parke,  Baron,  who  held  on  this  point  the  following  language. 
"  The  law  is  clearly  settled,  that  the  unpaid  vendor  has  a  right  to  retake 
the  goods  before  they  have  arrived  at  the  destination  originally  contem- 
plated by  the  purchaser,  unless  in  the  meantime  they  have  come  to  the 
actual  or  constructive  possession  of  the  vendee.  If  the  vendee  take  them 
out  of  the  possession  of  the  carrier  into  his  own  before  their  arrival,  with  or 
without  the  consent  of  the  carrier,  there  seems  to  be  no  doubt,  that  the 
transit  would  be  at  an  end  :  though,  in  the  case  of  the  absence  of  the  car- 
rier's consent,  it  may  be  a  wrong  to  him,  for  which  he  would  have  a  right 
of  action.  This  is  a  case  of  actual  possession,  which  certainly  did  not 
occur  in  the  present  instance.  A  case  of  constructive  possession  is,  where 
the  carrier  enters  expressly,  or  by  implication,  into  a  new  agreement,  dis- 
tinct from  the  original  contract  for  carriage,  to  hold  the  goods  for  the  con- 
signee as  his  agent,  not  for  the  purpose  of  expediting  them  to  the  place  of 
original  destination,  pursuant  to  that  contract,  but  in  a  new  character,  for 
the  purpose  of  custody  on  his  account,  and  subject  to  some  new  or  further, 
order  to  be  given  to  him. 

"  It  appears  to  us  to  be  very  doubtful,  whether  an  act  of  marking  or  taking 
samples,  or  the  like,  without  any  removal  from  the  possession  of  the  carrier, 
so  as  though  done  with  the  intention  to  take  possession,  would  amount  to  a 
constructive  possession,  unless  accompanied  with  such  circumstances  as  to 
denote  that  the  carrier  was  intended  to  keep,  and  assented  to  keep,  the 
goods  in  the  nature  of  an  agent  for  custody.  In  the  case  of  Foster  v.  Framp- 
ton,  6  B.  &  C.  107  ;  9  D.  &  R.  108,  it  is  clear  that  there  were  such  cir- 
cumstances ;  whether  in  that  of  Ellis  v.  Hunt,  7  T.  R.  46,  is  doubtful  ; 
but  it  is  unnecessary  to  determine  this  point,  as  there  is  no  finding  in  this 
case  even  of  any  act  done  to  the  timber  with  intent  to  take  possession. 
It  is  said,  indeed,  that  the  agent  of  the  assignees  touched  the  timber,  but 
whether  by  accident  or  design  is  not  stated.  There  being  then  no  such 
act  of  ownership,  it  seems  to  us  that  unless,  by  contract  with  the  captain, 
express  or  implied,  the  relation  in  which  he  stood  before,  as  a  mere  instru- 
ment of  conveyance  to  an  appointed  place  of  destination,  was  altered,  and 
he  became  the  agent  of  the  consignee  for  a  new  purpose,  there  was  no  con- 
structive possession  on  the  part  of  the  vendee. 

«'  There  is  no  proof  of  any  such  contract.   A  promise  by  the  captain  to  the 


LICKBARROW     V.     MASON.  665 

agent  of  the  assignees  is  stated,  but  it  is  no  more  than  a  promise,  without  a 
new  consideration,  to  fulfil  the  original  contract,  and  deliver  in  due  course 
to  the  consignee,  on  payment  of  freight,  which  leaves  the  captain  in  the 
same  situation  as  before  ;  after  the  agreement  he  remained  a  mere  agent  for 
expediting  the  cargo  to  its  original  destination. 

"  We  therefore  think  that  the  transaction  on  the  8th  August  did  not  amount 
to  a  constructive  possession  by  the  vendees,  and  therefore  the  defendants 
are  entitled  to  our  judgment." 

The  better  law  would,  therefore,  seem  to  be,  that  whether  that  final  deli- 
very has  been  attained  which  determines  the  right  of  stoppage  in  transitu, 
is  to  be  decided  according  to  the  intent  of  the  parties  in  each  case,  by  exa- 
mining whether  they  contemplated  any  farther,  and  more  absolute,  reduc- 
tion to  possession  on  the  part  of  the  vendee. 

Although  the  goods  be  delivered  to  an  agent  of  the  vendee,  or  to  a  person 
in  his  employ,  or  although  placed  on  board  his  ship,  or  in  his  warehouse, 
still,  if  this  be  done  with  the  view  of  forwarding  them  to  the  vendee  himself, 
and  the  direction  in  which  they  have  been  moving,  and  are  still  to  move, 
be  the  result  of  the  original  impulse  impressed  upon  them  by  the  vendor  at 
the  beginning  of  the  transitus,  the  power  of  the  latter  to  resume  them  into 
his  own  possession,  will  still  continue.  All  bailments  made  in  pursuance 
of  the  original  design  of  the  vendor,  where'thal  has  been  to  bring  the  goods 
more  absolutely  to  the  possession  of  the  vendee,  are  in  fact  quoad  the  com- 
pletion of  the  transitus,  bailments  on  the  account  and  to  the  agents  of  the 
vendor ;  and  this,  although  made  to  persons  in  the  employ  of  the  vendee, 
and  for  the  purpose  of  transportation  in  his  vessels.  The  transitus  will 
equally  continue  whether  the  consignor  ship  the  goods  in  a  vessel  belonging 
to  himself,  or  in  one  owned  by  the  consignee,  and  commanded  by  a  master 
in  his  employ.  Stubbs  v.  Lund,  7  Mass.  453  ;  Ilsley  v.  Stubbs,  9  Id.  65  ; 
Newhall  v.  Vargas,  13  Maine,  93;  15  Id.  314;  Buckley  v.  Furniss,  15 
Wendell,  137  ;  17  Id.  504.  Where,  however,  the  shipment  is  made,  not 
subject  to  the  direction  of  the  vendor,  nor  with  the  intent  of  affecting  a  final 
delivery  of  the  goods  to  the  vendee,  but  is  entirely  subject  to  the  orders  of 
the  latter  ab  initio,  and  the  only  delivery  to  him  contemplated  by  the  par- 
ties, there  the  transitus  is  terminated  at  once  by  the  mere  fact  of  the  ship- 
ment, and  the  vendor  can  in  no  event  have  a  right  to  resume  possession  of 
the  goods.     Rowley  v.  Bigelow,  12  Pick.  307. 

The  law  with  regard  to  what  sort  of  delivery  will  amount  to  a  termination 
of  the  transitus,  would  seem  to  be  held  differently  in  Pennsylvania.  In 
Bolin  V,  Huffnagle,  1  Rawle,  9,  the  court  decided  this  was  not  to  be  deter- 
mined by  examining  what  was  the  ultimate  destination  of  the  goods,  or  the 
final  object  of  the  voyage,  but  simply  by  the  nature  of  the  circumstances 
attendant  upon  the  particular  delivery  of  the  goods  in  question,  and  the 
character  of  the  person  to  whom  it  is  made.  A  delivery,  for  any  object 
whatever,  to  the  possession  of  an  exclusive  agent  of  the  vendee,  was  held 
to  be  necessarily  a  final  delivery.  Under  the  influence  of  these  principles, 
it  was  held  that  a  shipment  of  the  goods  made  by  the  plaintiffs  at  Malaga, 
on  board  a  vessel  belonging  to  the  assignors  of  the  defendants,  and  com- 
manded by  a  master  in  their  employ,  although  for  the  purpose  of  transpor- 
tation to  their  residence  as  consignees,  and  a  delivery  to  their  actual  pos- 
session, determined  the  transitus,  and  divested  the  right  of  stoppage. 


666i  smith's  leading  cases. 

The  earlier  cases  on  the  subject  of  stoppage  in  transitu,  would  seem  to 
have  required,  that  actual  possession  should  be  taken  of  the  goods,  by  the 
party  acting  on  behalf  of  ihe  consignor.  It  was  subsequently  admitted,  that 
a  notice  of  his  claim,  if  given  to  the  cajrier  in  possession  of  the  goods,  would 
be  sufficient.  Lett  v.  Cowley,  7  Taunton,  169.  In  Whitehead  v.  Anderson, 
above  cited,  the  distinction  was  taken,  that  in  such  case  the  notice,  if  not 
given  to  the  agent  of  the  carrier  in  the  immediate  custody  of  the  goods,  but 
to  his  principal,  must  be  given  at  such  a  time  and  under  such  circumstances 
that  the  latter,  by  the  exercise  of  reasonable  diligence,  may  communicate  it 
to  his  agent  in  time  to  prevent  a  delivery  to  the  consignee ;  and  it  was 
therefore  determined,  that  notice  to  the  owner  of  a  vessel  then  at  sea,  was 
not  sufficient,  and  did  not  preclude  the  necessity  for  some  valid  act  of  stop- 
page after  her  arrival  in  harbour.  But  in  the  case  of  Bell  v.  Moss,  5  Whar- 
ton, 189,  this  difficulty  was  ingeniously  obviated  by  addressing  the  notice 
while  the  vessel  was  still  at  sea,  to  the  assignees  of  the  consignee,  who  had 
become  insolvent,  and  it  was  there,  for  the  first  time,  decided,  that  this  was 
sufficient,  and  amounted  to  a  valid  stoppage  in  transitu.  Of  course,  in  this 
case,  it  could  not  be  urged,  that  the  notice  was  addressed  to  a  party  who 
could  not  give  it  efft?ct,  and  the  decision  was  placed  on  the  ground  that  any 
notorious  act  of  reclamation  addressed  to  a  party  interested,  would  be  suf- 
ficient. 

It  is  not  necessary  to  a  valid  stoppage  in  transitu,  that  the  party  by  whom 
it  is  effected,  should  have  received  a  special  authority  to  that  effect;  or  even, 
as  it  would  seem,  that  he  should  previously  be  a  general  or  special  agent  of 
the  consignor.  Bell  v.  Moss,  5  Wharton,  189  ;  Newhall  v.  Vargas.  It 
would  appear  that  where  the  circumstances  are  such  as  to  give  a  legal  right, 
a  stranger  may  exercise  it,  without  any  connexion  with  the  party  benefi- 
cally  interested,  provided  a  subsequent  ratification  be  given,  and  by  relation, 
authorize  the  whole  proceeding  ab  initio.  Yet  in  Whitehead  v.  Anderson, 
the  latter  point  was  doubted,  although  it  was  held  that  the  authority  of  a 
general  agent  was  sufficient. 

We  have  already  seen,  that  while  the  goods  remain  unpaid  for,  and  the 
transitus  continues,  the  right  of  the  vendor  to  stop  them,  upon  the  occur- 
rence of  insolvency  in  the  vendee,  may  be  defeated  by  a  bona  fide  sale,  for 
a  valuable  consideration,  accompanied  with  a  transfer  of  the  bill  of  lading. 
All  these  requisites  must,  however,  concur.  Stanton  v.  Eager,  16  Pickering, 
473.  An  assignment  for  the  benefit  of  creditors,  or  a  seizure  by  an  execu- 
tion creditor,  or  under  process  of  foreign  attachment  against  the  con- 
signee, will  leave  the  goods  as  much  subject  to  the  exercise  of  the  right, 
as  they  were  before  either  happened.  Idem.  ibid.  Buckley  v.  Furniss,  15 
Wend.  137  ;  17  Id.  504.  Naylor  v.  Dennie,  8  Pick.  198.  The  fact  of  an 
assignment  for  benefit  of  creditors,  is  of  itself,  notice  to  the  assignee  of  the 
insolvency  of  the  consignee,  and  of  the  consequent  liabilit}'  of  the  goods  to 
seizure  by  the  consignor.  Yet  it  would  seem,  that  if  an  assignee  take,  for 
the  benefit  of  creditors,  actual  possession  of  the  goods  before  they  are  re- 
claimed by  the  vendor,  the  right  of  the  latter  will  be  as  much  defeated  as  if 
they  had  come  to  the  hands  of  the  assignor  himself.  Jones  v.  Jones,  8 
M.  &  W.  431.  And  the  Court  appeared  to  entertain  the  opinion,  that, 
if  the  deed  of  assignment  contained  a  release  from  the  creditors,  and  was 
accompanied  by  an  indorsement,  it  would  be  considered  as  a  transfer  for  a 


LICKBARROW     V.     MASON.  667 

valuable  consideration,  and  preclude  any  subsequent  stoppage  in  transitu. 
But  it  must  be  observed,  that  in  this  case  the  assignor,  by  whom  the  pos- 
session was  taken,  was  himself  one  of  the  creditors  for  whose  benefit  the 
deed  of  assignment  was  made.  Nor  will  a  sale  for  a  valuable  consideration, 
unaccompanied  by  a  transfer  of  a  bill  of  lading,  although  quite  sufficient  to 
pass  the  property  in  the  goods,  (Stanton  v.  Eager,  16  Pick.  473;  Gardner 
V.  Howland,  2  Pick.  399,)  affect  the  power  of  the  consignor,  to  stop  them 
in  transitu.  Ilsiey  v.  Slubbs,  9  Mass.  65  ;  Stanton  v.  Eager  ;  Craven  v. 
Rider,  6  Taunton,  433.  The  absence  of  the  bill  of  lading,  must  be  consi- 
dered as  constructive  notice,  that  the  consignee  has  not  paid  for  the  goods, 
and  that  the  consignor  has  not  waived  his  right  of  resuming  his  lien  for  the 
purchase-money.  Craven  v.  Ryder.  And  in  Jenkyns  v.  Usborne,  7  M.  & 
G.  678,  the  court  appear  to  have  entertained  the  opinion,  that  where  a 
new  and  distinct  contract  of  sale  was  made  by  the  consignee  on  his  own 
account,  an  indorsement  by  the  vendee  to  a  second  purchaser  from  him,  of 
the  bill  of  lading  of  the  original  consignment,  would  have  had  the  effect 
of  divesting  the  right  of  stoppage  in  transitu  of  the  consignee  under  the  new 
sale,  as  well  as  of  the  consignor  under  the  old. 

The  stoppage  of  the  goods  does  not  rescind  the  contract  of  sale.  It  merely 
replaces  the  consignor  in  the  position  in  which  he  was  before  the  transitus 
began,  and  enables  him  to  enforce  the  right  of  lien,  which  arises  in  every 
vendor,  on  the  non-payment  of  the  purchase-money,  and  continues  until  the 
goods  come  with  his  consent,  to  the  actual  possession  of  the  vendor  or  his 
agents.  Newhall  v.  Vargas,  13  Maine,  93  ;  Jordan  v.  James,  5  Hammond, 
98,  15  id.  314  ;  Wenlworth  v.  Outhwaite,  10  M.  &  W.  436.  452.  When 
part  of  the  purchase-money  has  been  paid,  a  tender  of  re-payment  of  such 
part  to  the  consignee,  is  consequently,  not  requisite  to  the  validity  of  the 
stoppage  ;  13  Maine,  93.  On  the  other  hand,  the  consignor  becomes  liable 
to  pay  the  freight  on  the  voyage  ;  for  the  effect  of  the  stoppage  is,  to  revest 
his  possession,  ab  initio,  by  relation  of  law  ;  and  moreover,  the  voyage  in 
fact,  becomes  one  performed  for  his  benefit.  This  liability  will  accrue, 
though  the  goods  have  been  transported  on  board  a  ship  belonging  to  the 
consignee,  so  that,  independently  of  the  stoppage,  no  freight  whatever 
would  be  due  by  any  of  the  parties.     Newhall  v.  Vargas,  15  Maine,  314. 

As  the  contract  of  sale  is  not  rescinded  by  the  stoppage,  the  party  who 
has  made  it  may,  after  a  new  tender  of  the  goods  stopped,  sue  for  and  reco- 
ver the  price  due  on  the  original  contract.  But,  as  in  all  other  cases  of  con- 
tracts for  the  sale  of  goods,  this  necessity  for  tender  may  be  waived,  by  the 
conduct  of  the  purchasers.  15  Maine,  314.  The  recovery  moreover,  may 
be  for  the  whole  value  of  the  goods  originally  shipped,  although  part  of 
them  may  have  perished  during  the  voyage,  before  the  stoppage  wag 
efl^ected,  for  the  property  passes  to  the  vendee,  and  the  risk  becomes  his, 
from  the  moment  the  contract  of  sale  is  complete,  although  the  vendor 
should  resume  or  retain  possession  of  the  goods,  by  virtue  of  his  lien  for 
their  price.     Idem.  ibid. 

As  a  vendor  retaining  possession  of  goods  under  his  lien  for  their  price, 
may  sell  them  when  of  a  perishable  nature,  to  prevent  a  total  loss,  (Sands 
V.  Taylor,  5  Johnson,  41 1,)  so  a  vendor  who  resumes  possession  of  goods 
under  a  stoppage  in  transitu,  may,  perhaps,  exercise  the  same  power,  and 


668  smith's   leading   cases. 

yet  retain  his  right  to  recover  against  the  vendee,  by  a  subsequent  suit,  the 
difference  between  the  sum  produced  by  such  sale,  and  the  price  agreed  on 
by  the  original  contract. 

It  may  be  well  to  observe,  in  taking  leave  of  the  point  decided  by  Lick- 
barrow  V.  Mason,  that  the  decisions  will  perhaps  finally  determine,  that 
where  a  bona  fide  sale,  for  value,  of  a  shipment  which  has  not  yet  arrived, 
has  been  made  by  the  consignee,  and  executed  by  any  constructive  delivery 
of  possession,  the  defeasance  of  the  right  of  stoppage  does  not  necessarily 
so  much  depend  upon  an  accompanying  indorsement  of  the  bill  of  lading, 
by  the  consignee,  to  the  purchaser,  as  upon  the  question  whether  there  has 
been  a  past  absolute  indorsement  of  such  bill  by  the  consignor  to  the  con- 
signee. As  it  would  seem  from  the  case  of  Gardner  v.  Howland,  that  in 
the  absence  of  the  bill  of  lading,  any  other  sufficient  constructive  delivery 
Avill  execute  the  sale  and  transfer  all  the  rights  of  the  consignee  to  the  pur- 
chaser, so  where  there  has  been  an  actual  indorsement  and  delivery  of  the 
bill  to  the  consignee,  by  the  consignor,  the  right  of  the  latter  would  appear 
to  be  effectually  barred  by  a  subsequent  sale,  though  from  circumstances  the 
consignee  should  be  compelled  to  resort  to  some  mode  of  delivery,  other 
than  a  reindorsement.  But  although  the  consignee  has  received  the  bill  of 
lading,  still,  if  actually  in  his  possession,  his  omission  to  indorse  it  on  the 
occurrence  of  a  re-sale  by  him,  would  prevent  the  right  of  stoppage  from 
being  defeated,  for  it  would  be  notice  to  the  purchaser,  of  the  consignor's 
equity  ;  a  notice  which  does  not  exist,  when  a  consignee,  after  a  prior 
indorsement  and  delivery  of  the  bill  to  himself,  has  ceased,  from  any  con- 
currence of  circumstances,  unconnected  with  the  consignor,  to  have  it  in  his 
hands  at  the  time  of  the  sale. 

Yet  it  was  held  in  Jenkyns  v.  Usborne,  7  M.  &  G,  678,  that  a  pur- 
chaser who  had  effected  a  new  and  distinct  sale  on  his  own  account,  of  goods 
still  at  sea,  but  without  indorsing  the  bill  of  lading,  might  stop  them  in  tran- 
situ, as  against  a  bona  fide  purchaser  from  his  vendee  on  the  insolvency  of 
the  latter,  although  the  circumstances  were  such  as  to  explain  the  failure  to 
make  the  indorsement,  and  the  bill  had  been  regularly  indorsed  and  sent 
forward  by  the  consignor.  But  this  case  is  peculiar  in  raising  the  question 
as  to  the  right  of  stoppage,  not  on  the  part  of  the  original  shipper,  but  on 
that  of  the  vendee  from  him,  and  on  a  contract  of  sale  and  delivery,  to  which 
the  unindorsed  bill  of  lading  bore  no  sort  of  reference. 

H. 


[*436]  *MILLS  V,  AURIOL. 


TRIN.— 30  GEO.  3,  IN  C.  P.  &  B.  R. 

[reported   1   11.  BLACK,  433,  AND    4  T.  R.   94.] 

The  bankruptcy  of  the  defendant  cannot  be  pleaded  in  bar  of  an  action  of  covenant 

for  rent. 

This  was  an  action  of  covenant  for  non-payment  of  rent  payable  quar- 


MILLS     V.     AURIOL.  669 

terly.  The  covenant  on  which  the  breach  was  assigned,  after  the  usual 
words,  "  yielding  and  paying,  &c.,  was  as  follows  : — "And  the  said  Peter 
James  (the  defendant)  for  himself,  his  heirs,  executors,  administrators,  and 
assigns,  did  thereby  covenant,  promise,  and  agree  (amongst  other  things) 
to  and  with  the  said  Benjamin  (the  plaintiff,)  his  heirs  and  assigns,  that  he 
the  said  Peter  James,  his  heirs,  executors, administrators,  or  assigns,  should 
and  would,  during  all  the  rest  of  the  said  term",  thereby  demised,  well  and 
truly  pay,  or  cause  to  be  paid,  unto  the  said  Benjamin,  his  heirs  and 
assigns,  the  said  clear  yearly  rent  of  110/.,  in  manner  and  form  aforesaid, 
according  to  the  true  intent  and  meaning  of  the  said  indenture."  The 
breach  was  the  non-payment  of  27/.  10s.,  for  a  quarter  ending  December 
25,  1789. 

The  defendant  pleaded,  Isl.  Non  est  factum.  2nd,  Riens  in  arrere.  3rd, 
"That  after  the  making  of  the  said  indenture  in  the  said  declaration  men- 
tioned, and  before  the  suing  out  of  the  original  writ  of  the  said  Benjamia 
agamst  the  said  Peter  James,  to  wit,  on  the  first  day  of  January,  in  the  year 
of  our  Lord  1789,  and  from  thence  until  the  day  of  suing  out  the  commis- 
sion of  bankruptcy  herein  mentioned  against  the  said  Peter  James,  he,  the 
said  Peter  James  was  a  trader  within  the  intent  and  meaning  of  the  several 
statutes  made  and  then  in  force  against  bankrupts  ;  that  is  to  say,  a  mer- 
chant, dealer  and  chapman,  to  wit,  at  London  aforesaid,  in  the  parish  and 
ward  aforesaid,  and  during  all  that  time  used  and  exercised  the  trade  and 
business  of  a  merchant,  in  buying  and  selling  divers  silks,  and  other  goods, 
wares  and  merchandizes,  and  receiving  consignments  of  silks,  and  other 
goods,  and  selling  the  same  on  commission,  for  his  correspondents  and  cus- 
tomers, for  profit  and  gain,  and  thereby  sought  and  endeavoured  to  get  his 
living  as  other  persons  of  the  same  trade  usually  do  ;  and  the  said  Peter 
James  so  being  such  trader  as  aforesaid,  within  the  intent  and  meaning  of 
the  said  several  statutes  made  and  then  in  force  concerning  bankrupts,  and 
so  seeking  his  living  by  way  of  buying  and  selling  as  aforesaid,  he  the  said 
Peter  James  afterwards,  and  before  any  of  the  rent  or  money  in  the  said 
declaration  mentioned  became  due  and  payable,  to  wit,  on  the  8th  day  of 
June,  in  the  year  aforesaid,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid,  became  and  was  indebted  to  one  George  Tickner  Flardy,  gentle- 
man, then  being  the  subject  of  this  realm,  in  100/.  of  lawful  money  of  Great 
Britain,  for  so  much  money,  before  that  time,  paid,  laid  out,  and  expended 
by  the  said  George  Tickner  Hardy,  to  and  for  the  use  of  the  said  Peter 
James,  at  his  special  instance  and  request;  and  the  said  Peter  James  being 
so  indebted  as  aforesaid,  and  being  a  subject  of  this  realm,  and  so  seeking 
his  living  by  way  of  buying  and  selling  as  aforesaid,  he,  the  said  Peter  James, 
afterwards,  to  wit,  on  the  same  day  andyearlastaforesaid,.at  London  aforesaid, 
in  the  parish  and  ward  aforesaid,  (he  the  said  George  Tickner  Hardy  so 
being  a  creditor  of  the  said  Peter  James,  and  being  then  wholly  unsatisfied, 
his  debt,)  manifestly  became  a  bankrupt,  within  the  intent  and  meaning  of 
the  several  statutes  made  and  then  in  force  against  bankrupts;  and  the 
said  Peter  James  so  being  and  remaining  a  bankrupt  as  aforesaid,  he  the 
said  George  Tickner  Hardy,  as  well  for  himself  as  for  all  other  creditors 
of  the  said  Peter  James,  afterwards,  to  wit,  on  the  9th  day  of  June,  in  the 
year  aforesaid,  at  Westminster,  in  the  county  of  Middlesex,  to  wit,  at  Lon- 
don aforesaid,  in  the  parish  and  ward  aforesaid,  exhibited  his  certain  petilion 


670  smith's   leading   cases. 

in  writing  to  the  Right  Honourable  Edward  Lord  Thurlow,  then  Lord  High 
Chancellor  of  Great  Britain,  and  thereby  petitioned  the  said  Lord  Chancel- 
r*4^8"l  ^°'''  ^°  grant  to  the  said  *George  Tickner  Hardy  his  majesty's 
L  -'  commission,  to  be  directed  to  such  and  so  many  persons  as  he 
should  think  fit  to  give  his  authority  of  and  concerning  the  said  bankrupt, 
and  to  all  other  intents  and  purposes,  according  to  the  provisions  of  the 
statutes  made  and  then  in  force  concerning  bankrupts,  as  by  the  said  peti- 
tion remaining  in  the  court  of  chancery  of  our  lord  the  now  king  at  West- 
minster aforesaid  more  fully  appears  ;  and  the  said  Peter  James  further 
saith,  that  upon  the  said  petition  of  the  said  George  Tickner  Hardy  so  exhibi- 
ted as  aforesaid,  on  behalf  of  himself  and  others  the  then  creditors  of  the  said 
Peter  James,  according  to  the  form  of  the  statutes  in  such  case  made  and  pro- 
vided, for  giving  them  relief  on  that  behalf,  afterwards  and  before  the  said 
sum  of  money  in  the  said  declaration  mentioned  or  any  part  thereof  became 
due,  and  before  the  said  supposed  breach  of  covenant  to  wit,  on  the  9th 
day  of  June  in  the  year  aforesaid,  at  Westminister  aforesaid,  to  wit,  at 
London  aforesaid,  in  the  parish  and  ward  aforesaid,  a  certain  commission 
of  our  lord  the  now  king,  founded  upon  the  statutes  made  and  then  in  force 
concerning  bankrupts,  in  due  form  of  law  issued,  under  the  great  seal  of 
Great  Britain,  bearing  date  the  same  day  and  year  last  aforesaid,  directed 
to  Michael  Dodson,  Thomas  Plumer,  Edward  Finch  Hatton, Robert  Corny n 
and  Charles  Proby,  Esquires,  and  was  then  and  there  to  them  directed,  by 
which  said  commission,  our  said  lord  the  now  king  gave  full  power  and 
authority  to  them  the  said  iMichael  Dodson,  Thomas  Plumer,  Edward  Finch 
Hatton,  Robert  Comyn,  and  Charles  Proby,  four  or  three  of  them,  to  pro- 
ceed according  to  the  said  statutes,  and  all  other  statutes  then  in  force  con- 
cerning bankrupts,  not  only  concerning  the  aforesaid  bankrupt,  his  body, 
lands,  tenements,  both  freehold  and  copyhold,  goods,  debts,  and  all  other 
matters  whatsoever,  but  also  concerning  all  other  persons,  who  by  conceal- 
ment, claim  or  otherwise,  should  offend  touching  or  concerning  the  premises 
or  any  part  thereof,  against  the  true  intent  and  purport  of  the  said  statute, 
and  to  do  and  execute  all  and  everything  and  things  whatsoever,  as  well 
for  and  towards  satisfaction  and  payment  of  the  creditors  of  the  said  Peter 
James,  as  towards  and  for  all  other  intents  and  purposes  whatsoever, 
according  to  the  order  and  provisions  of  the  said  statutes,  as  by  the  said 
r*4^ql  ^°™'^'^^'0i^  (amongst  other  things)  more  *fully  appears  ;  by  virtue 
L  -^  of  which  said  commission,  and  by  force  of  the  statutes  aforesaid. 
The  said  Michael  Dodson,  Edward  Finch  Hatton,  and  Robert  Comyn,  three  of 
the  commissioners  named  in  the  said  commission,  afterwards,  to  wit,  on  the 
11th  day  of  June,  in  the  year  aforesaid,  to  wit,  at  London  aforesaid,  in  the  par- 
ish and  ward  aforesaid,  having  taken  upon  themselves  the  burden  of  the  said 
commission,  then  and  there  duly  adjudged  and  declared  -the  said  Peter 
James  to  have  been,  and  become  on  the  day  of  the  issuing  of  the  said  commis- 
sion, and  then  to  be  a  bankrupt,  within  the  true  intent  and  meaning  of  the  said 
statutes,  some  or  one  of  them:  and  the  said  Peter  James  further  says,  that 
afterwards,  to  wit,  on  the  26th  day  of  June,  in  the  year  aforesaid,  at  Lon- 
don aforesaid,  (The  said  Peter  James  then  remaining  and  continuing  a 
bankrupt  as  aforesaid,)  they  the  said  Michael  Dodson,  Edward  Finch  Hat- 
ton, and  Robert  Comyn,  in  due  manner  and  according  to  the  form  of  the 


MILLS     V.    AURIOL.  671 

statute  in  such  case  .made  and  provided,  by  an  indenture  then  and  there 
duly  made,  and  bearing  date  the  same  day  and  year  last  aforesaid,  between 
the  said  Michael  Dodson,  Edward  Finch  Hatton,  and  Robert  Comyn,  of 
the  one  part,  and  Robert  Mendham,  of  Walbrook,London,  merchant,  George 
Marsh,  of  Broad  street,  London,  silk-broker,  and  the  said  George  Tickner 
Hardy  of  the  other  part,  then  and  there  duly  bargained,  disposed,  assigned 
and  set  over,  amongst  other  things,  the  said  indentures  of  lease  in  the  said 
declaration  mentioned,  and  all  the  estate  and  interest  of  the  said  Peter  James 
of,  in,  and  to  the  same,  and  of,  in,  and  to  the  premises  thereby  demised, 
to  the  said  Robert  Mendham,  George  Marsh,  and  George  Tickner  Hardy, 
(the  said  Robert  Mendham,  George  Marsh,  and  George  Tickner  Hardy, 
before  the  said  assignment  so  made  to  them  as  aforesaid,  having  been  duly 
chosen  assignees  of  the  debts,  credits,  goods  and  chattels,  estate  and  effects 
of  the  said  Peter  James  the  bankrupt,  according  to  the  form  of  the  statute 
in  such  case  made  and  provided,)  to  hold  to  them  the  said  Robert  Mendham, 
George  Marsh  and  George  Tickner  Hardy,  their  executors,  administrators, 
and  assigns,  from  thenceforth  for  the  residue  of  the  said  demised  term  then 
to  come  and  unexpired  ;  by  virtue  of  which  said  assignment,  all  the  estate, 
interest,  and  term  of  years  then  to  come  and  unexpired,  property,  claim, 
and  demand,  of  the  *said  Peter  James,  of  and  in  the  said  inden-  pj^^^i^-i 
ture  of  lease,  and  of  and  in  the  premises  thereby  demised,  then  and  L  -i 
there  became,  and  was  vested  in  the  said  Robert  Mendham,  George  Marsh, 
and  George  Tickner  H^ardy,  as  such  assignees,  and  the  same  from  thence 
hitherto  hath  been,  and  still  is  vested  in  them  the  said  Robert  Mendham, 
George  Marsh,  and  George  Tickner  Hardy,  (the  said  commission  still  remain- 
ing in  full  force  and  effect,  in  no  ways  superseded,  cancelled,  or  set  aside,) 
and  the  said  Robert  Mendham,  George  Marsh,  and  George  Tickner  Hardy, 
then  and  there,  to  wit,  on  the  same  day  and  year  last  aforesaid,  at  London 
aforesaid,  became,  and  were  for  along  time,  to  wit,  from  thence  hitherto, 
have  been  possessed  of  and  in  the  said  demised  premises,  with  the  appur- 
tenances, and  this  the  Said  Peter  James  is  ready  to  verify,"  &c. 

To  this  plea  there  was  a  general  demurrer,  and  issue  joined  on  the  two 
first. 

The  demurrer  was  argued  in  Easter  term  last  by  Bond,  Serjt.,  for  the 
plaintiff,  and  Le  Blanc,  Serjt.,  for  the  defendant;  and  in  this  term  by 
Adair,  Serjt.,  for  the  plaintiff",  and  Lawrence,  Serjt.,  for  the  defendant. 
The  following  was  the  substance  of  the  arguments  on  the  part  of  the 
plaintiff" — • 

The  matter  disclosed  in  the  third  plea  affords  no  answer  to  the  demand 
of  the  plaintiff",  because  the  covenant  on  which  the  action  is  brought  being 
express,  personally  bound  the  defendant,  and  was  not  done  away  by  the 
assignment  under  the  commission  of  bankrupt.  In  leases  there  are  two  sorts 
of  covenants,  by  which  tenants  are  liable  either  to  an  action  of  debt  or 
covenant  ;  namely,  express  and  implied  covenants.  On  the  latter,  the 
lessee  is  liable  to  either  species  of  action,  unless  there  has  been  a  complete 
assignment  with  the  assent  of  the  lessor,  for  by  such  an  assignment  the 
right  of  action  of  the  lessor  is  certainly  divested.  Walker's  case,  3  Co.  22, 
a.,  where  the  lessee  having  assigned  his  term  without  the  assent  of  the 
lessor,  was  still  holden  to  be  subject  to  debt  for  the  rent  in  arrear.     So  in 


673  smith's    leading   cases. 

Wad  ham  v.  Marlow,(a)  Lord  Mansfield  says  that  the  tenant  shall  not  by  his 
own  act  destroy  the  tenancy  without  the  concurrence  of  the  landlord. 
r#449"l  ^^  '^^  '^^^  ^^  *thu3  with  regard  to  the  action  of  debt  on  an  implied. 
L         -^  covenant,  so  also  it  is  with  respect  to  the  action  of  covenant  on  an 

(«)  Wadham  v.  Marlow,  B.  R.  Midi.  25  Geo.  3.(t)  This  was  an  action  of  debt  for  rent 
due  on  a  lease  which  was  expired.  The  defendant  pleaded  ;  1.  Non  est  factuni.  2.  As  to 
18/.  5s  ,  one  quarter's  rent,  that  he  became  a  bankrupt,  and  that  the  said  sum  of  18/.  5s, 
was  due  before  liis  bankruptcy.  3.  As  to  the  residue  of  the  sum  demanded,  that  it  became 
due  after  the  bankruptcy.  On  the  first  plea  issue  was  joined.  On  the  second  the  plaintiff 
remitted  the  18/.  5s.  and  demurred  generally  to  the  third. 

It  was  arg-ued  in  support  of  the  demurrer,  that  where  there  is  an  assignmehtr  by  the 
r*44li  original  lessee,  if  the  lessor  accepts  rent  of  the  assignee,  the  lessee  is  thereby  dis- 
'■  -■  charged,  it  being  an  acceptance  of  the  *assignee  as  tenant.    The  lessor  may  either 

resort  to  the  lessee  on  the  privity  of  contract,  or  the  assignee  on  the  privity  of  estate. 
But  having  made  his  election  against  whom  to  proceed,  he  is  bound  by  it.  Walker's  case, 
3  Co.  22  ;  Devereux  v.  Barlow,  2  Sand.  181.  The  case  of  Coghill  v'.  Freelovc,  3  Mod.  325, 
goes  farther,  as  there  it  is  said,  that  privity  of  contract  with  the  testator  is  not  discharged 
by  his  death.  In  Cantrel  v.  Graham,  Barnes,  69,  the  court  interposed  on  behalf  of  the 
liberty  of  the  person.  This  is  like  the  case  of  a  certified  bankrupt  having  by  a  subsequent 
promise  made  himself  liable  to  a  debt  contracted  before  his  bankruptcy,  where  the  court 
have  permitted  a  common  appearance. 

As  to  the  general  question,  whetlicr  the  plaintiff  can  recover  notwithstanding  the  assign- 
ment ?  the  bankrupt  may  indeed  say,  that  he  has  paited  with  his  whole  interest,  and  that 
it  is  hard  he  should  be  called  to  account  on  a  contract  previously  made.  But  if  there  be 
any  hardship,  it  is  for  the  legislature  to  interpose.  Bankruptcy  arises  from  the  act  of  the 
bankrupt  himself;  he  therefore  is  liable  as  much  as  any  other  lessee.  The  certificate  can 
discharge-from  no  debt  but  what  is  due  before  the  bankruplcy.  Aylett  v.  James,  C.  B.  22 
Geo.  3,  which  was  an  action  of  covenant ;  the  defendant  pleaded  his  discharge  under  an 
insolvent  act,  and  on  demurrer  judgment  was  given  for  the  plaintiff.  It  was  there  said, 
that  a  bankrupt  is  liable  for  covenants  made  befbre  his  bankruptcy  ;  and  there  seems  to  be 
no  reason  why  he  should  not  be  also  liable  for  a  debt  accruing  in  consequence  of  a  covenant 
made  before  it. 

For  the  defendant  it  was  contended,  that  debt  was  only  brought  on  the  reddendum  of  the 
lease.  Plowd.  132;  Co.  I.itt.  142,  a.;  2  Black.  Com.  41.  It  is  payable  out  of  the  land,  not 
on  account  of  the  land.  The  moment  the  lessee  parts  with  the  possession,  the  action  can 
no  longer  be  maintained.  Notice  to  the  lessor  of  the  assignment  by  the  lessee  is  sufficient 
to  discharge  him.  There  is  a  grotit  difference  between  covenant  and  debt  on  the  redden- 
dum ;  the  words  "  yielding  and  paying,"  create  a  covenant  to  pay,  but  only  on  condition 
that  the  lessee  shall  enjoy.  It  docs  not  hold  after  eviction  or  loss  of  possession.  But  after 
loss  of  possession  the  party  is  still  liable  on  an  express  covenant.  1  Sid.  447  ;  1  Browiil.  20. 
Rent  arises  on  a  contract  executory.  Suppose  the  bankrupt  had  entered  into  a  contract  to 
deliver  goods  at  a  future  day;  his  assignee  might  have  affirmed  or  disaffirmed  the  con- 
tract. All  his  personal  engagements  pass  to  them.  If  the  term  be  of  greater  value  than 
the  rent,  it  should  be  presumed  that  the  assignees  have  accepted  it,  and  the  lessee  shall  be 
exonerated.  The  privity  of  contract  is  destroyed  by  the  assignment.  When  the  lessee  is 
deprived  of  the  land  without  remedy  over,  he  ceases  to  be  liable  for  the  rent.  So  it  is  on 
eviction,  entry,  and  expulsion.  Plowd.  71  ;  Noy,  75.  So  if  deprived  by  the  act  of  God.  1 
Roll.  Abr.  236.  But  here  the  defendant  is  deprived  by  the  act  of  law.  7  Vin.  Abr.  84  ;  1 
Atk.  67  A  commission  of  bankruptcy  is  an  execution  in  the  first  instance,  not  an  act  of 
the  party.  Burr.  2  439,  Mayor  v.  Steward.  There  is  a  difference  between  an  insolvent  per- 
son and  a  bankrupt. 

Lord  Mansfield. — Two  points  were  argued  for  the  plaintiffs.  1st.  If  there  had  been  no 
bankruptcy  but  the  lessee  had  merely  assigned  to  another,  he  would  still  remain  liable  in 
debt,  till  the  lessor  had  assented  to  the  assignment.  2nd.  Bankruptcy  being  an  act  done 
by  the  bankrupt  himself,  he  shall  remain  liable  like  any  other  lessee.  As  to  the  first  point, 
it  is  not  necessary  that  there  should  be  an  actual  acceptance  of  rent  by  the  lessor  in  order 
to  discharge  the  lessee  from  the  action  of  debt  on  the  reddendum  ;  but  any  assent  is  suffi- 
cient. The  action  on  the  reddendum  is  founded,  not  merely  on  the  terms  of  the  demise, 
but  on  the  enjoyment  of  the  tenant.  In  Warren  v.  Conset,  2  Lord  Raym.  1500,  it  was 
agreed  that  "  levied  by  distress  and  sic  nil  debet"  was  a  good  plea  to  debt  for  rent  on  an 

(t)  Cooke's  Bankrupt  Laws,  last  edit.  511. 


MILLS     V.     AURIOL.  673 

implied  covenant,  in  which  the  general  rule  is,  that  without  the  assent  of 
the  lessor,  the  lessee  shall  not  discharge  himself  from  his  covenant  by  an 
assignment  of  the  term. 

Thus  the  law  stands  as  to  implied  covenants.  But  with  regard  to  an 
express  covenant,  though  it  be  true  that  no  action  of  debt  will  lie  on  it 
against  the  lessee  after  an  assignment,  where  the  lessor  has  by  a  direct  act 
(such  as  the  acceptance  of  rent  from  the  assignee)  confirmed  the  assio-n- 
ment,  Cro.  Jac.  334,  yet  it  is  equally  true,  that  on  an  express  covenant,  an 
action  of  covenant  will  lie  for  the  lessor  against  the  lessee,  notwithstandino- 
his  acceptance  of  rent  from  the  assignee.  1  Sid.  402;  Cro.  Jac.  309  ;  Cro. 
Car.  188.  580  ;  Cas  temp.  Hardwicke,  343  ;  and  in  Cro.  Jac.  522  ;  1  Sid. 
447  ;  the  distinction  between  express  and  implied  covenants  is  taken  ;  that 
in  an  express  covenant,  though  the  lessor  accept  rent  from  the  assio-nee, 
yet  he  may  have  an  action  of  covenant  against  the  lessee,  but  not  in 
case  of  an  implied  covenant,  which,  it  is  said,  is  cancelled  by  the  assign- 
ment. 

The  question  then  is,  whether,  in  the  present  case,  the  lease  and  all  the 
bankrupt's  interest  being  vested  in  the  assignees  under  the  commission,  he 
is  discharged  from  an  express  covenant  ?  Now  the  contrary  appears  from 
Thursby  v.  Plant,  1  Saund.  237.  The  assignees  of  a  bankrupt  are  like 
any  other  assignees  of  a  lease.  The  assignment  under  the  commission  is 
no  more  than  any  other  assignment  with  the  assent  of  the  lessor,  every  one 
having  virtually  given  his  assent  to  an  act  of  parliament.  Wadham  v. 
Marlow.  A  bankrupt,  though  divested  of  his  property,  is  still  liable  on  his 
express  covenants. 

The  protection  from  debts  which  is  given  to  bankrupts,  is  on  condition  of 
a  complete  obedience  to  the  regulations  of  the  several  acts  passed  on  the 
subject.  It  is  therefore  material  to  consider  what  those  regulations  are. 
By  13  Eliz.  c.  7,  bankrupts  were  only  discharged  to  the  extent  of  the  sum 
actually  paid:  and  thus  the  law  remained  till  the  passing  of  4  Anne,  c.  17, 

indenture.  What  sliall  be  deemed  an  enjoyment  by  tlie  tenant  hath  been  mueh  agitated  as 
a  question  of  law  ;  but  lie  cannot  destroy  the  tenancy  witliout  the  assent  of  tlie  lessor.  On 
behalf  of  the  defendant  it  was  argued,  that  notice  to  the  lessor  is  a  sufficient  discharge  of 
the  lessee.  But  in  the  cases  in  Brownl.  and  Cro.  Jac.  there  was  an  express  acceptance, 
and  in  Siderfin,  though  the  case  is  short  and  confused,  it  must  be  so  understood.  In  2 
Saund.  181,  it  is  said  he  may  sue  either  assignee  or  lessee.  In  the  present  case  there  is 
neither  acceptance  of  rent  nor  assent;  and  if  there  were  nothing  but  notice,  we  are  all  of 
opinion  that  the  lessee  would  be  liable  to  the  action.  This  brings  me  to  the  second  point 
on  which  there  are  only  two  cases ;  for  that  of  Aylett  v.  James  does  not  apply.  Those 
cases  arc.  Mayor  v.  Steward  and  Cantrel  v.  Graham.  The  first  was  determined  on  the 
ground  that  tlie  covenant  was  collateral ;  but  there  is  a  strong  tliough  ol)iter  dictum  of 
Yates,  J.,  that  it  would  be  hard  to  leave  the  lessee  liable  to  the  covenants,  when  the  act  of 
law  had  divested  him  of  tlie  emoluments  and  vested  them  in  his  creditors.  In  Cantrel  v. 
Graham,  the  court  made  a  direct  determination  on  the  point.  We  have  a  fuller  note  of  it 
than  there  is  in  Barnes.  The  counsel  said  it  was  merely  an  effort  made  to  relieve  the 
defendant  on  account  of  the  hardship  of  the  case.  But  the  court  would  not  liave  discharo-ed 
Jiim  unless  they  had  been  satisfied  that  the  action  was  not  founded.  This  case  is  precisely 
in  point,  and  we  agree  with  the  determination.  The  bankrupt's  estate  is  vested  in  the 
assignees  by  act  of  parliament.  Every  man's  assent  shall  be  presumed  to  an  art  of  parlia- 
mcnt.  It  was  agreed  that  if  a  man  be  divested  by  act  of  law  without  his  own  default, 
he  is  discharged.  Tliis  is  as  strong,  because,  though  it  was  liis  own  act  originally  on 
which  an  assignment  was  founded,  yet  the  immediate  effect  produced  is  by  act  of  parlia- 
ment; et  injure,  non  rcmota  scd  proxima  spcctantur. 

Judgment  for  tlie  defendant. 
Vol.  I.— 43 


674  smith's  leading  cases. 

by  which  a  bankrupt  surrendering,  and  conforming  with  the  terms  pre- 
scribed, was  discharged  from  all  debts  due  at  the  time  he  became  bankrupt; 
the  reasons  of  which  provisions  are  stated  by  Lord  Hardwicke,  1  Atk.  256. 
P  -  To  jnake  the  remedy  complete,  the  statute  *5  Geo.  2,  c.  30,  s.  7, 
L  -I  gives  the  defence  of  a  generaLplea  of  bankruptcy,  and  allows  the 
certificate  to  be  evidence  in  support  of  it.  But  the  bankrupt  is  not  dis- 
charged by  these  statutes  from  contingent  debts,  Tully  v.  Sparkes,  Lord 
Raym.  1546,  nor  from  uncertain  damages,  nor  from  debts  accruing  after  the 
act  of  bankruptcy,  though  arising  on  a  cause  preceding  it.  The  certificate 
is  not  a  bar  to  an  action,  founded  on  an  express  collateral  covenant,  which 
does  not  run  with  the  land.  Mayor  v.  Steward,  4  Burr.  2439.  In  that 
case  the  bankrupt  was  holden  liable  on  an  express  covenant,  and  if  he  be 
so  on  one  sort  of  express  covenant,  why  not  on  another  ?  The  reason  why 
in  general  the  creditors  of  a  bankrupt  are  barred  by  the  certificate  is,  that 
they  may  prove  their  debts  under  the  commission.  But  where  the  credi- 
tor cannot  come  in  under  the  commission,  there  the  certificate  is  not  a 
bar  ;  and  in  the  present  case  no  debt  could  be  proved  under  the  commission. 
The  defence  here  set  up  is  founded  on  a  mere  obiter  dictum  of  Yates,  J.,  in 
Mayor  v.  Steward,  where  he  says,  that  "as  the  act  divests  the  bankrupt  of 
his  whole  estate,  and  renders  him  absolutely  incapable  of  performing  the 
covenant,  it  would  be  a  hardship  upon  him,  if  he  should  remain  slill  liable 
to  it,  when  he  is  disabled  by  the  act  of  parliament  from  performing  it." 
But  whether  there  would  be  a  hardship  or  not,  was  a  matter  for  the  consi- 
deration of  the  legislature.  In  fact,  the  hardship  would  not  be  greater  than 
in  suing  a  felon  after  attainder  and  forfeiture  of  his  lands  ;  yet  a  felon  in 
such  a  situation  is  liable  to  an  action.  Bannister  v.  Trussel,  Cro.  Eliz. 
516;  Noy,  1  ;  Owen,  69.  But  in  truth  the  hardship  would  be  greater  on 
landlords,  if  the  tenant  becoming  a  bankrupt  were  discharged  from  his 
express  covenants.  They  would  be  liable  to  fraud,  and  might  be  deprived 
of  their  rent.  The  assignees  of  the  bankrupt  might  assign  the- lease  to  an 
insolvent  person,  as  in  Stra.  1221,  where  the  former  assignee  of  a  term 
made  a  further  assignment  to  a  prisoner  in  the  Fleet,  and  by  such  assign- 
ment was  discharged  from  debt  for  rent  by  the  original  lessor,  it  being 
holden  than  an  assignee  of  a  term  was  no  longer  liable  than  while  the 
privity  of  estate' continued,  and  he  occupied  the  premises  ;  which  doctrine 
also  agrees  with  Walker's  case.  By  assignment  therefore  the  landlord  may 
be  left  without  remedy  unless  he  should  resort  to  the  antiquated  process  of 
-,  cessavit,  *or  to  the  assistance  of  two  justices  under  stat.  11  Geo.  2, 
L  J  c.  19,  s.  16.  Although  an  action  of  debt  on  the  reddendum  of  a 
lease  is  barred  by  a  bankrupt's  certificate,  according  to  the  case  of  Wadham 
V.  Marlow,  and  although  an  action  of  covenant  on  an  implied  covenant  is 
also  barred  by  an  assignment,  yet  it  does  not  follow  that  an  action  of  cove- 
nant on  an  express  covenant  is  likewise  barred.  Though  the  party  be 
exonerated  in  debt,  he  is  not  necessarily  so  in  covenant.  Debt  lies  on  the 
reddendum,. because' a  rent  issues  out  of  the  land,  Plowd.  132;  Co.  Litt. 
142,a.  It  is  payable  out  of  the  land,  and  when  the  possession  of  the  land 
is  parted  with,  the  rent,  and  the  action  of  debt  for  the  recovery  of  it,  are 
gone.  But  an  express  covenant  is  a  solemn  engagement  from  one  man  to 
another;  it  neither  issues  out  of  land,  nor  is  done  away  by  the  loss  of  pos- 
session.    In  1  Salk.  82,  it  is  is  said  that  the  action  of  debt  is  founded  on 


MILLS     V.     AURIOL.  675 

privity  of  estate,  but  covenant  on  privity  of  contract,  which  seems  to  be 
admitted,  7  Vin.  Abr.  330.  In  the  case  of  Cotterell  v.  Hoolte,  Dougl.  97, 
on  covenant  for  non-payment  of  an  annuity,  it  appeared  on  oyer,  that  there 
was  a  bond  conditioned  for  payment  of  the  annuity,  besides  the  deed  of 
covenant ;  it  was  pleaded  that  both  were  given  for  the  same  purpose,  that 
the  bond  was  avoided,  and  the  defendant  discharged  under  an  insolvent  act. 
But  the  court  held,  though  the  bond  were  forfeited  before  the  discharge, 
vet  the  defendant  might  be  sued  afterwards  on  the  covenant.  To  the  same 
point  is  Hornby  v.  Houlditch,  And.  40,  the  judgment  of  Lord  Hardwicke, 
which  case  is  more  fully  stated  in  1  Term  Rep.  B.  R.  93,  which  is  directly 
in  point  to  show,  that  an  assignment  by  an  act  of  parliament  does  not  dis- 
charge a  party  from  an  express  covenant.  So  also  in  Aylelt  v.  James, (a) 
whicli  was  an  action  of  covenant,  the  defendant  pleaded  his  discharge  under 
an  insolvent  act,  to  which  there  was  a  demurrer,  and  judgment  for  the 
plaintiff",  the  court  saying,  that  a  bankrupt  was  liable  on  an  express  co-ve- 
nant  made  before  the  bankruptcy.  The  case  of  an  eviction  is  totally  dif- 
ferent, since  in  that  case  no  rent  is  due,  whether  the  eviction  be  by  the 
lessor  himself,  or  a  person  having  a  superior  title.  _ 

The  following  were  the  arguments  for  the' defendant :  Admitting  the 
authority  of  the  cases  cited  on  the  other  side,  which  show  that,  where  there 
is  a  voluntary  assignment  by  *a  lessee,  such  assignment  does  not  r-:^^^^n 
excuse   him   from  an  express  covenant;   admitting,  also,  that  the  L 
acceptance  of  rent  by  the  lessor  from  the  assignee,  would  not  discharge  the 
lessee  from  an  express  covenant ;  yet  there  is  a  clear  distinction  to  be  made 
between  an  assignment  by  virtue  of  the  bankrupt  laws,  and  a  voluntary 
assignment  by  th°e  lessee.     By  the  fofmer,  the  bankrupt  is  divested  by  act 
of  law  of  all  the  property,  out  of  which,  and  in  respect  of  which,  the  cove- 
nant vv'as  made.  A  covenant  for  payment  of  rent  runs  with  the  land  ;  when 
therefore   the  tenant  is  evicted  by  a  superior  title,  he  is  released  from  his 
covenant.     When   he  is   prevented  from  enjoying  the  land  in  respect  of 
which  he  entered  into  the  covenant,  he  is  no  longer  liable  on  the  covenant. 
Rent  is  defined  to  be  a  certain  profit   issuing  yearly  out  of  lands  and  tene- 
ments corporeal  ;  Plowd.  71  ;  2  Blac.  Com.  41  :   when  therefore  the  land 
is  gone,  there  is  an  end  of  the  profits  ;  and  it  is  on  account  of  the  profits 
that  covenants  of  this  kind  are  made.     When  the  consideration  is  gone,  the 
rent  fails.      1  Roll.  Abr.  454,  pi.  8.     Where  the  lessee  makes  a  voluntary 
assignment  of  his  term,  he  has  it  in  his  power  to  make  what  stipulations  he 
plea°ses  with  the  assignee  ;  he  may  receive  a  consideration,  may  covenant 
for  rent,  for  indemnity,  and  the  like.     But  in  case  of  bankruptcy,  the  bank- 
rupt can  make  no  stipulation,  nor  receive  himself  any  valuable  considera- 
tion.     There  is   no  analogy  therefore  between  the  assignment  under  a 
commission  of  bankrupt,  and  a  voluntary  assignment  by  the  lessee  himself. 
But  it  is  admitted  on  the  other  side,  that  a  voluntary  assignment  will  bar  a 
covenant  arising  from  the  words  "yielding  and  paying,"  &c.,  which  it  is 
said  is  only  an  implied  covenant ;  but  in  Style,  387  and  406,  those  words 
were  holden  to  make  an  express  covenant.     As  to  the  hardship  which  is 
supposed  to  be  brought  upon  the  landlord,  he  may  re-enter  on  non-payment 
of  rent,  may  distrain,  and  resort  to  the  land  itself  for  satisfaction.     But  the 
lessee,  if  he  be  evicted,  can  have  no  such  remedy  ;  he  might  therefore  suf- 

(a)  C.  B.  22  Geo.  3. 


676  smith's     LEADING     CASES. 

fer  a  greater  hardship.  In  case  of  a  lawful  eviction,  the  lessee  is  discharged 
from  his  covenants  ;  and  where  he  is  divested  of  his  property  by  an  act  of 
parliament,  it  operates  as  an  eviction,  and  he  ought  in  justice  to  be  equally 
discharged.  Though  the  act  of  bankruptcy  was  originally  his  own  act,  yet 
pj.  -,  the  statute  is  an  act  of  law,  and  according  to  *Lord  Mansfield's  doc- 
L  -'  trine  in  Wadham  v.  Marlow,  in  jure,  non  remota  sed  proxima  spec- 
tantur.  The  case  of  Mayor  v.  Steward  is  clearly  in  favour  of  the  defendant, 
to  show  the  analogy  between  an  eviction  of  the  tenant  by  the  landlord,  and 
an  eviction  under  an  act  of  parliament :  there  also  the  distinction  is  taken 
between  collateral  covenants,  and  those  which  run  with  the  land.  As  to 
Bannister  v.  Trussel,  there  was  no  question  in  that  case  of  rent  reserved  on 
a  demise,  and  the  particular  enjoyment  of  certain  land  ;  the  point  was, 
whether  an  attainted  person  was  freed  generally  from  all  his  debts  ?  which 
the  court  very  properly  held  he  was  not.  In  AVadham  v.  Marlow,  Lord 
Mansfield  says,  "  there  is  a  strong  though  obiter  dictum  of  Yates,  J.,  that  it 
would  be  hard  to  leave  the  lessee  liable  to  the  covenants,  when  the  act  of 
law  has  divested  him  of  the  emoluments,  and  vested  them  in  his  creditors  ;" 
and  his  lordship  also  says,  that  "  in  Cantrel  v.  Graham,  the  court  would  not 
have  discharged  the  defendant  unless  they  had  been  satisfied  that  the  action 
was  not  founded."  In  Ludford  v.  Barber,  though  the  point  was  not  directly 
decided,  yet  the  opinion  of  the  court  seems  to  be  plainly  intimated,  that  if  it 
had  been  a  question  like  the  present,  the  rule  laid  down  in  Wadham  v. 
Marlow  would  have'  guided  their  determination.  As  to  Hornby  v.  Houl- 
ditch,  there  was  no  bankruptcy  in  that  case,  but  a  South-sea  director  was 
for  his  misconduct  deprived  of  his  property  by  a  bill  in  the  nature  of  pains 
and  penalties  ;  there  was  no  act  of  law  operating  for  the  benefit  of  an  unfor- 
tunate tradesman  ;  besides,  there  was  a  large  sum  reserved  for  the  main- 
tenance of  the  person  who  was  the  object  of  the  punishment ;  that  case 
therefore  cannot  be  applied  to  the  present.  Here  the  lessor  himself  has 
taken  away  the  obligation  to  pay  the  rent,  by  taking  away  the  land  which 
was  the  consideration  of  the  covenant;  since  it  was  assigned  by  virtue  of  an 
act  of  parliament,  to  which,  according  to  Wadham  v.  Marlow,  the  lessor  was 
himself  a  party. 

Lord  Loughborough. — There  is  no  degree  of  doubt  but  that  the  law  is 
established,  that  an  action  of  covenant  may  be  brought  on  a  covenant  to  pay- 
rent,  though  the  lessee  be  not  in  possession  of  the  land,  and  after  acceptance 
of  rent  from  the  assignee  by  the  lessor.  This  is  by  privity  of  contract ;  but 
the  distinction  is  clear  between  debt  and  covenant.  That  when  the  term  is 
-,  taken  under  the  assignment  of  *commissioners  of  bankrupt,  the 
L  -J  question  is,  whether  it  is  not  by  the  act  of  the  bankrupt  himself?  It 
is  taken  from  him  because  he  has  contracted  debts,  and  instead  of  any  single 
creditor  suing  out  a  fieri  facias,  the  common  law  execution,  there  being 
many  creditors,  they  join  in  taking  out  a  commission  of  bankruptcy,  which 
is  in  the  nature  of  a  statute  execution.  By  this  the  property  is  vested  in 
the  assignees,  but  not  so  absolutely  as  in  the  vendee  by  a  sale  under  a  fieri 
facias  made  by  the  sheriff";  because  if  the  effects  were  sufficient  without  it, 
the  term  would  remain  to  the  lessee.  Covenant  then  may  well  be  brought 
against  him.  Though  he  is  out  of  possession,  yet  he  is  placed  in  that  situ- 
ation by  his  own  act.  I  am  therefore  of  opinion  that  the  demurrer  ought  to 
be  over-ruled. 


MILLS    V.    AURIOL.  677 

Gould,  J.,  of  the  same  opinion. 

Heath,  J.,  of  the  same  opinion. 

TJilson,  J. — The  plea  of  the  defendant  is  not  supported  by  any  adjudged 
case.  It  has  never  yet  been  decided  that  an  action  of  covenant  would  not 
lie  upon  a  covenant  by  a  lessee  which  runs  with  the  land,  and  which  was 
entered  into  before,  but  broken  after,  the  bankruptcy  of  the  covenantor.  I 
entertained  no  doubt  on  this  question  except  what  arose  from  hints  thrown 
out  by  some  of  the  judges  of  the  Court  of  King's  Bench  whenever  the 
question  has  come  before  them,  on  account  of  the  dictum  of  Mr.  Justice 
Yates,  in  Mayor  v.  Steward,  that  as  the  bankrupt  is  divested  of  his  whole 
estate,  and  rendered  incapable  of  performing  the  covenants,  it  would  be  a 
hardship  upon  him  if  he  should  siiH  remain  liable  to  it,  when  he  is  disabled 
by  the  act  of  parliament  from  performing  it.  But  this  opinion  was  clearly 
extrajudicial,  for,  under  the  circumstances  of  that  case,  the  court  held  the 
plea  to  be  bad.  In  Wadham  v.  Marlow,  Lord  Mansfield  spoke  of  the  opinion 
of  Mr.  Justice  Yates  as  deserving  great  weight,  though  it  was  extra-judi- 
cial. But  in  that  case  it  was  not  stated  that  the  plaintiff  had  accepted  rent 
from  the  assignee  as  his  tenant,  and.it  was  contended  that  debt  as  well  as 
covenant  would  lie  against  the  lessee,  because  the  lessor  had  done  no  act  to 
show  his  assent  to  the  assignment.  But  the  court  decided,  on  the  ground 
that  the  plaintiff  had  virtually  assented  to  the  assignment,  every  man's 
assent  being  implied  to  an  act  of  parhament,  and  not  on  the  ground  that  an 
action  of  debt  would  not  lie.  And  in  *Ludford  v.  Barber  the  court  ajq-i 
gave  judgment  for  defendant,  because  the  covenant  declared  upon  L  J 
had  never  been  entered  into  by  him  with  the  plaintiff.  Thus  the  question 
stands  with  respect  to  judicial  decisions.  Tlie  several  statutes  relating  to 
bankrupts  prior  to  the  4  Anne,  c.  17,  left  the  bankrupt  not  only  liable  to  all 
contingent  debts,  but  to  the  remainder  of  the  debts  which  his  effects  had 
been  unable  to  satisfy.  The  hardship  was  the  same,  for  the  bankrupt  was 
deprived  of  his  all,  and  yet  left  without  any  protection  against  his  creditors. 
The  statutes  previousHo  that  time  meant  to  give  an  execution  for  the  equal 
benefit  of  all  the  creditors,  and,  if  they  were  not  fully  satisfied  by  it,  to  leave 
them  for  what  was  unsatisfied  to  every  remedy  against  the  bankrupt  which 
they  had  before.  Neither  that  statute,  nor  the  now  existing  statutes  upon 
the  subject,  extend  to  this  case.  The  34  lien.  8,  c.  4,  sec.  1,  directs  that 
the  Lord  Chancellor  and  other  great  officers  shall  have  power  to  sell  and 
dispose  of  the  lands  and  goods  of  bankrupts  in  as  full  a  manner  as  the  bank- 
rupt himself  might  have  done.  Subsequent  statutes  have  empowered  tlie 
assignees  to  make  the  same  disposition.  The  intent  of  the  several  statutes 
was,  that  the  act  of  the  assignees  should  do  no  more  than  the  act  of  the 
bankrupt  himself.  I  therefore  do  not  see  how  the  maxim  "  in  jure  non 
remota  sed  proxima  spectantur"  is  applicable.  The  act  of  parliament  only 
assigns  the  interest  of  the  bankrupt  in  the  land,  but  does  not  destroy  the 
privity  of  contract  between  lessor  and  lessee,  ^n  action  of  covenant 
remains  after  the  estate  is  gone  ;  but  generally  speaking,  when  the  land 
is  gone,  the  action  of  debt  is  also  gone,  the  debt  being  maintainable 
because  the  land  is  debtor. \     Covenant  is  founded  on  a  privily  collateral 

t  See  Webb  y.  Jiggs,  4  M.  &  S.  411  ;  Randall  v.  Rigby,  4  M.  &  W.  134 ;  where  it  was 
held  on  this  principle  that  the  debt  will  not  lie  against  a  person  who  covenants  to  secure 
an  annuity  payable  out  of  the  land. 


678  smith's   leading   cases. 

to  the  land.  A  covenant  of  this  kind  is  mixed  ;  it  is  partly  personal  and 
partly  dependant  on  the  land  ;  it  binds  both  the  person  and  the  land.  This 
brings  the  case  within  the  principle  of  Mayor  v.  Steward. 

Judgment  for  the  plaintiff. 


AURIOL    V.    MILLS,    IN    ERROR. 

Covenant  in  the  Common  Pleas  for  rent.  Plea,  non  est  factum  ;  riens 
in  arrere  ;  and  the  bankruptcy  of  the  plaintiff  in  error,  before  the  rent 
r*44Q'l  ^^^^"^^  ^^^  '  ^"  which  plea  it  was  *stated,  that  the  commissioners 
L  -'  assigned  the  lease,  in  which  the  covenant  was  inserted,  to  the 
assignees  for  the  residue  of  the  term  ;  and  that  by  virtue  of  such  assign- 
ment, all  the  estate,  interest,  and  term  of  3^ears  then  to  come,  &c.,  of  the 
plaintiff  in  error  in  the  lease,  was  and  still  is  vested  in  the  assignees. 
To  the  latter  plea  there  was  a  general  demurrer  and  joinder  ;  and,  after  two 
arguments  in  the  Court  of  Common  Pleas,  judgment  was  given  for  the 
plaintiff  below.  The  record  having  been  removed  into  this  court  by  writ  of 
error, — 

Park,  for  the  plaintiff  in  error,  contended,  that  the  bankrupt  was  dis- 
•charged  from  his  covenant  to  pay  rent  by  the  assignment  of  all  his  property 
by  the  commissioners.  The  cases  principally  relied  on -in  the  Court  of 
Common  PJeas,  1  Sid.  401.  447  ;  1  Saund.  240 ;  Cro.  Jac.  309.  521  ;  Cro. 
Car.  188.  580;  and  Cas.  temp.  Hardw.  343,  only  prove  that  the  lessee 
cannot,  by  his  own  act  discharge  himself  from  his  express  covenant,  aad 
are,  therefore,  not'applicable  to  the  present  case  ;  because  here  the  bankrupt 
does  not  endeavour,  by  his  own  act,  to  discharge  himself,  but  the  estate,  in 
^•espect  of  which  he  entered  into  the  covenant,  is  taken  from  him  bylaw. 
Now,  the  general  principle  of  law,  which  holds  a  party  liable  on  his  express 
covenant,  although  the  estate,  in  respect  of  which  it  wa«  entered  into,  is 
gone,  is  founded  on  the  presumption  that  the  party  voluntarily,  and  by  his 
own  act,  assigned  over  the  estate  to  a  person  in  whom  he  has  confidence, 
and  against  whom  he  has  a  counter  remedy,  if  he  himself  be  sued  by  the 
lessor.  But  here  is  no  privity  of  contract  between  the  bankrupt  and  the 
assignee  under  the  commission  ;  and,  therefore,  the  reason  for  the  uphold- 
ing the  privity  of  contract  between  fhe  bankrupt  and  his  lessor  falls,  to  the 
ground,  especially  too  as"  the  bankrupt  could  maintain  no  action  against  the 
lessor  on  any  of  his  covenants.  A  party  who  enters  into  a  covenant  is  only 
liable  in  two  respects  ;  either  in  respect  of  the  estate  which  he  enjoys,  or 
on  his  personal  contract.  But  in  this  case  the  first  is  assigned  over,  and  is 
taken  from  the  lessee  by  act  of  law,  by  a  compulsory  power  which  he  can- 
not resist :  and,  as  to  the  other,  the  law  has  taken  aw^ay  the  means  by  which 
he  was  etjabled  to  perform  the  contract :  and  he  cannot  remain  liable  on  the 
covenant  for  himself  and  his  assigns,  for  that  means  voluntary  assigns  ;■  but 
r*4'im  ^^"^^  ^^  appears  *by  the  record  that  the  estate  is  vested  in  the 
L  -•  assignees  under  the  commission,  who  are  not  (legally  speaking)  the 
assignees  of  the  bankrupt,  but  of  the  creditors  or  commissioners  ;  the  bank- 
rupt himself  does  not  even  assign  in  point  of  fact ;  he  is  no  party  to  the 
deed  of  assignment.  It  was  contended  in  the  Court  of  Common  Pleas,  that 
a  bankrupt  remains  liable  on  his  express  covenants,  because  there  are  no 


ATJRIOL     V.     MILLS.  679 

express  words- in  the  statutes  concerning  bankrupts  to  discharge,  them  :   but 
they  are  by  no  means  necessary;  for  in  Brewster  v.  Kitchall,  Sulk.  198, 
Holt,  Ch.  J.,  said,  "If  H.  covenant  to  do  a  thing  which  is  lawful,  and  an 
act  of  parliament  come  in  and  hinder  him  from   doing  it,  the  covenant  is 
repealed  ;"  for  which  was  cited  Dy.  27,  pi.  278.      In  this  case,  the  bank- 
rupt is  disabled  from  performing  the  covenant,  which  is  the  same  thing  ; 
and  the  rule  of  law  applies,  lex  non  cogit  ad  impossibilia.      A  bankrupt  is 
discharged  by  the  bankrupt  laws  from  such  obligations  as  arise  in  respect  of 
any  property  vested  in  the  assignees  by  virtue  of  those  statutes.    In  Mayor 
V.  Steward,  4  Burr.  2443,  Yates,  J.,  said,  "as  the  act   divests  him  of  his 
whole  estate,  and  renders  him  absolutely  incapable  of  performing  the  cove- 
nant, it  would  be  a  hardship  upon  him  if  he  should  remain  still  liable  to  it, 
when  he  is  disabled  by  the  act  of  parliament   from  performing  it."     And 
the  court  (though  they  held  that  the  party  was  liable  in  that  case,  which 
was  on  a  collateral  covenant,)  nearly  adopted  the  language  of  Mr.  J.  Yates. 
In  Cantrel  v.  Graham,  Barnes,   69,  4to  ed.,  that   point  was   determined  ; 
and  the  authority  of-  that  case,  as  well  as  the   opinion  of  Yates,  J.,  were 
afterwards  expressly  recognized  by  this  court  in  Wadham  v.  Marlow,  H. 
Bl.  Rep.  437,  and  Cooke's  Bank.  Laws,  518,  2d  edition,  in  which  Lord 
Mansfield,  after  noticing  those  cases,  and  speaking  of  the   effect  of  the 
assignment  of  the  commissioners  of  bankrupts,  concluded  thus:  "it  was 
argued,  that  if  a  man  be  divested  by  act  of  law,  without-  his  own  default, 
he  is  -discharged;  this  is  as  strong;  because,  though  it  were  his  own  act 
originally  on  which  the  assignment  was  founded,  yet  the  immediate  effect 
produced  is  by  the  act  of  parliament;  et  in  jure,  non  remota  sed  proxima 
spectanlur."     When  this  case  was  determined  in  the  Common  Pleas,  it 
was  thrown  out  by  one  of  the  judges,  that  that  maxim  was  not  applicable 
to  a  case  like  this:   but  on  examination  it  will  be  found  to  apply  with 
peculiar  force.    The  objection  is,  that  the  bankrupt  is  divested  of  his  estate 
by  his  own  *act :   but  according  to  Lord  Bacon's  illustration  of  the  |-*_^gj-| 
rule, (a)   though   the  act  of  bankruptcy  be  the    primary  cause  on  L 
which  the   bankrupt  laws  attach,  yet  the  immediate  cause  of  his   being 
divested  of  his   estate   is   the   assignment  by  the  commissioners,  beyond 
which  the  court  are  not  to  look.      For  he  says,  "  It  were  infinite  for  the 
law  to  judge  the  causes  of  causes,  and  their  impulsions  one  of  another; 
therefore  it  contenteth  itself  with  the  immediate  cause,  and  judgeth  of  acts 
by  that,  without  looking  to  any  farther  degree."     And  he  puts  this  case  : 
"If  an  annuity  be  granted  pro  consilio  impenso  et  impendendo,  and   the 
grantee  commit  treason,  whereby  he  is  imprisoned,  so  that  the  grantor  can- 
not have  access  to.  him  for  his  counsel,  nevertheless  the  annuity  is  not 
determined  by  this  non-feasance  ;  yet  it  was  the  grantee's  act  and  default  to 
commit  the  treason  whereby  tlie  imprisonment  grew  :   but  the  law  looketh 
not  so  far,  butexcuseth  him,  because  the  not  giving  counsel  was  compul- 
sory, and  not  voluntary,  in  regard  to  the  imprisonment."     Now  that  is  a 
much  stronger  instance  than  the  present ;  for  that  proceeded  on  the  express 
crime  of  the  grantee.     With  respect  to  the  case  of  Hornby  v.  Houlditch, 
Andr.  40,  and  1  T.  R.  93,  n.  a,  which  was  relied  on  in  favour  of  the  plain- 
tiff below  :  it  is  to  be  observed  in  the  first  place  that  it  does  not  appear  by  a 

(a)  Bac.  Law  Tr.  35. 


680  smith's   leading   cases. 

MS.  note  of  that  case,  taken  by  Lee,  Chief  Justice,  that  Lord  Hardwicke 
concurred  in  opinion  with  the  court :  and,  even  if  he  did,  that  case  is  clearly- 
distinguishable  from  the  present.  The  question  there  depended  on  an  act 
of  parliament,  a  bill  of  pains  and  penalties,  which  was  passed  on  account  of 
the  crimes  of  the  South-sea  directors  ;  and  even  there  the  directors  had  a  cer- 
tain sum  (and  that  too  a  considerable  one)  reserved  to  them  for  the  payment 
of  their  private  debts  ;  but  bankrupts  are  considered  as  unfortunate  traders 
rather  than  as  criminals ;  the  allowance  to  them  when  made,  is  very  incon- 
siderable, and  it  is  contingent  whether  or  not  they  are  to  receive  any  allow- 
ance. Neither  is  this  case  like  the  one  to  which  it  was" compared  below, 
of  a  common  law  execution,  where  it  is  said  that  the  tenant,  whose  term  is 
thus  taken  from  him,  is  liable  on  his  covenant;  because  there  the  privity  of 
contract  is  not  at  an  end  ;  the  lessee  has  his  remedy  over  Tigainst  the  vendee 
of  the  sheriff":  whereas  in  this  case  the  bankrupt  has  no  control  whatever 
r*4'^9'l  ^^^'^  ^'^^  assignees  in  whom  the  term  is  now  *vested.  The  argu. 
>-  -^  ment  ab  inconvenienti  may  fairly  be  urged  in  construing  the  stat- 
utes relating  to  bankrupts  :  by  determining  that  if  the  bankrupt  is  discharged 
in  this  case,  the  lessor  will  not  suffer,  because-  he  always  has  his  remedy 
against  the  tenants  in  possession ;  whereas  to  hold  that  the  bankrupt  con- 
tinues liable  after  his  bankruptcy,  is  to  decide  that  he  is  bound  by  his  cove- 
nant to  pay  rent  for  an  estate  which  is  absolutely  taken  from  him  by  the 
compulsory  power  of  the  law,  and  in  the  expectation  of  enjoying  which 
only  he  entered  into  tJie  covenant. 

Bond,  Serjt.,  contra — It  appears  from  all  the  authorities  on  this  subject, 
that  nothing  can  discharge  a  person  from  hi^  express  covenant  but  the 
express  words  of  an  act  of  parliament,  or  the  release  of  the  covenantee. 
The  cases  of  Wadham  v.  Marlow,  and  Cantrel  v.  Graham,  are  not  applica- 
ble to  the  present ;  for  they  were  both(«)  actions  of  debt.  That  species  of 
action  is  founded  on  the  possession  of  the  tenant;  and  when  the  lessor  con- 
sents that  the  lessee  shall  assign  to  another  person,  the  lessee  is  discharged. 
But  this  action  is  founded  on  the  express  covenant  of  the  lessee  ;  and  the 
case  of  Hornby  v.  Houlditch  clearly  proves  that  he  remains  liable  on  that 
covenant,  notwithstanding  his  bankruptcy.  That  was  a  kind  of  statute 
execution  like  the  present :  and  Lord  Hardwicke,  in  giving  his  opinion  on 
the  case,  alluded  to  the  instance  of  a  bankrupt.  From  the  reign  of  Q,ueen 
Elizabeth,  when  the  first  statute  relating  to  bankrupts  was  passed,  down  to 
that  of  Glueen  Anne,  bankrupts  continued  liable  for  their  debts  contracted 
before  their  bankruptcy,  and  the  dividends  under  the  commissions  were 
only  considered  as  a  joayment  pro  lanto :  the  statute  4  Anne  (the  reasons 
for  making  which  provisions  are  stated  by  Lord  Hardwicke  in  1  Atk. 
255-6)  for  the  first  time  discharged  them  from  their  debts  in  toto ;  but  that 
only  gives  a  discharge  from  debts  due  at  the  time  of  the  bankruptcy.  Now 
the  demand  made  by  the  defendant  in  error  in  this  case,  was  not  a  debt  due 
at  the  titne  of  the  bankruptcy,  and  therefore  tl\e  plaintifT  in  error  is  not 
discharged  from  it.  What  fell  from  Yates,  J.,  in  iMayor  v.  Stewart,  was 
merely  an  extrajudicial  opinion,  not  necessary  to  be  given  on  the  case  then 
before  the  court ;  and  it  was  only  an  observation  on  the  hardship  of  the  case 

{'i)  It  docs  not  appear  clearly  from  the  report  of  the  case  of  Cantrel  v.  Graham,  whether 
it  was  an  action  of  debt  or  covenant;  thoug-h,  from  some  expressions  used  by  the  court  in 
determining'  it,  it  rather  appears  to  be  the  former. 


AURIOL     V.     MILLS.  681 

Avithout  saying  wliat  the  law  was  upon  the  subject.  But  if  it  be  a  case  of 
*hard:5hip,  it  can  only  be  remedied  by  the  legislature,  and  not  by  pw^^t-q-i 
the  courts  of  law.  A  statute  execution  is  analogous,  in  this  respect,  L  -^ 
to  a  common  law  execution  ;  in  that,  if  a  term  be  taken  under  fieri  facias, 
the  lessee  still  continues  liable  on  his  covenant.  So  if  a  person  be  divested 
of  all  his  property  by  attainder  in  felony,  he  is  liable  for  his  debts  contracted 
before,  though  deprived  by  law  of  the  means  of  paying  them.  Cro.  Eliz. 
516.  There  may  possibly  be  some  hardships  on  the  lessee  in  particular 
cases;  but  it  would  also  be  extremely  hard  on  the  landlord,  if  he  were 
deprived  of  his  remedy  on  the  covenant  of  the  lessee  ;  for  though  he  may 
always  bring  an  action  of  debt  against  the  tenant  in  possession,  yet  the  term 
may  be  assigned  over  to  an  insolvent,  as  was  done  i.n  the  case  2  Str.  1221. 
It  seems  therefore  in  point  of  reason  and  justice,  as  well  as  of  strict  law, 
that  the  defendant  in  error  is  entitled  to  the  judgment  given  in  his  favour 
by  the  Court  of  Common  Pleas. 

Buller,  J.,  observed,  that  in  arguing  the  case  of  Wadham  v.  Marlowe,  a 
case  was  cited  from  Hob.  82  ;  and  he  asked  the  counsel  whether  that  case 
affected  the  present.     No  answer  being  given, 

The  court  said  it  would  be  proper,  before  they  gave  judgment,  to  look 
into  the  cases  that  had  been  mentioned. 

Lord  Kenyan,  Chief  Justice,  on  the  next  day  delivered  the  opinion  of  the 
court. 

It  was  not  owing  to  any  doubt  that  we  entertained  on  this  question  that 
we  did  not  pronounce  judgment  when  the  case  was  argued  ;  but  as  a  case 
was  alluded  to  in  Hobart, which  was  not  argued  upon  at  the  bar,  we  wished 
to  have  an  opportunity  of  examining  that  case  before  we  gave  our  opinion. 
But,  on  looking  into  it,  we  think  that  it  does  not  press  upon  the  present 
case  ;  and  we  are  all  of  opinion  (in  which  Mr.  Justice  Buller,  who  is  now 
absent,  concurs)  that  the  judgment  of  the. Court  of  Common  Pleas  must  be 
affirmed.  It  is  extremely  clear,  that  a  person  who  enters  into  an  express 
covenant  in  a  lease,  continues  liable  on  his  covenant  notwithstanding  the 
lease  be  assigned  over.  The  distinction, between  the  actions  of  debt  and 
covenant  which  was  taken  in  early  limes,  is  equally  clear  ;  if  the  lessee 
assign  over  the  lease,  and  the  lessor  accept  the  assignee  as  his  lessee,  either 
tacitly  or  expressly,  it  appears  by  the  authorities  that  an  action  of  debt  will 
not  lie  against  the  original  ■*lessee  ;  but  all  those  cases  with  one  r^AKA-\ 
voice  declare,  that  if  there  be  an   express  covenant,  the  obligation  l  -• 

on  such  covenant  still  continues.  And  this  is  founded  not  on  precedents 
only,  but  on  reason  ;  for  when  a  landlord  grants  a  lease,  he  selects  his  ten- 
ant ;  he  trusts  to  the  skill  and  responsibility  of  that  tenant;  and  it  cannot 
be  endured  that  he  should  afterwards  be  deprived  of  his  action  on  the  cove- 
nant to  which  he  trusted  by  an  act  to  which  he  cannot  object,  as  in  the 
case  of  an  execution.  In  such  a  case  the  lessor  has  no  choice  of  the  under- 
tenant :  so  here  the  assignees  are  bound  to  sell  the  term,  and  perhaps  they 
may  assign  to  a  person  in  whom  the  lessor  has  no  confidence. 

Then  it  remains  to  be  considered  whether  any  exception  to  that  general 
rule  has  taken  place  in  the  case  of  a  bankrujotcy.  It  seemed  admitted  in 
the  argument,  and  indeed  it  cannot  be  disputed,  that,  where  a  disposition  of 
the  lease  has  been  made  by  virtue  of  a  fieri  facias,  or  an  elegit,  the  lessee 
continues  liable  on  his  covenant,  notwithstanding  the  estate  be  taken  from 


682  smith's  leading  cases. 

him  against  his  consent.  On  the  same  principle  the  South-sea  director 
was  held  liable,  although  he  was  divested  of  his  properly  by  the  act  of  con- 
fiscation. So  in  the  case  of  an  attainder,  and  other  cases,  which  it  is  not 
aecessary  to  mention  particularly,  as  they  are  all  collected  in  the  report  of 
this  case  in  the  Common  Pleas.  Then  what  is  there  peculiar  in  the  case 
of  a  bankrupt,  which  should  differ  it  from  those  cases  ?  No  act  of  parlia- 
ment has  said  that  he  should  be  discharged  from  his  covenants  ;  neither  is 
there  any  resolution  in  either  of  the  courts  of  law  to  that  effect :  but,  on  the 
contrar}',  it  has  been  uniformly  determined  in  all  the  various  cases  on  the 
subject,  that,  for  all  contracts  which  are  not  to  be  performed  till  a  period 
subsequent  to  the  bankruptcy,  the  bankrupt  shall  still  be  liable,  notwith- 
standing he  is  stripped  of  all  his  property;  as  in  the  case  of Goddard  v. 
Vanderheyden,  3  Wils.  262,  and  many  others.  So,  in  this  case,  the  defend- 
ant's liability  to  pay  happened  after  the  bankruptcy  ;  and  therefore,  on  the 
principle  of  those  cases,  he  remains  liable,  notwithstanding  the  commission 
of  bankruptcy  divested  him  of  all  his  property  ;  for  a  certificate  would  only 
have  made  him  a  new  man  from  the  time  when  the  act  of  bankruptcy  was 
committed.  But  instances  have  occurred  where  persons,  who  have  been 
P  .__-,  declared  bankrupts,  have  been  possessed  of  *considerable  property 
L  -■  after  paying  all  their  debts  ;  as  in  that  of  Sir  S.  Evans.  Then,  in  rea- 
son, why  should  a  person  not  continue  liable  on  his  covenant,  when  his  affairs 
are  arranged  ?  Then  it  was  contended  that  the  bankruptcy  put  an  end  to 
the  privity  of  contract  ;  but  that  argument  is  not  well  founded,  for  it  was 
asked  by  Lord  Hardwicke,  in  the  case  of  Hornby  v.  Houlditch,  as  it  is 
reported  in  the  reports('«)  of  this  court,  "  what  is  there  here  to  discharge  the 
privity  of  contract  or  estate  between  the  lessor  and  lessee  ?  or,  what  is  there 
to  discharge  an  express  covenant  ?"  In  the  language  of  Lord  Hardwicke, 
I  may  ask  the  same  questions  in'this  case.  Has  the  landlord  done  any  act 
to  discharge  the  lessee  ?  Even  in  cases  where  the  landlord  has  expressly 
consented  to  receive  the  assignee  as  his  tenant,  the  original  lessee  has 
always  been  held  liable  on  his  covenant ;  and  those  are,  in  my  opinion, 
much  stronger  cases  than  the  present,  where  the  assignees  are  forced  upon 
the  landlord  without  his  consent.  This  is  like  the'case  of  an  execution, 
and,  indeed,  ip  some  of  the  books  it  is  called  a  statute-execution.  In  every 
view  of  the  question,  therefore,  lam  clearly  of  opinion,  that  this  case  was 
properly  decided  in  the  Court  of  Common  Pleas,  and  that  judgment  ought 
to  be  affirmed. 

'  Judgment  affirmed. (i) 


It  appears  to  have  been    taken  for  ever,  the  cas:e  of  Copeland  v.  Stephens, 

granted,    throughout  the   argument    in  1  B.  &  A.  .593,  has  since  decided    that 

both   courts,   that  the  bankrupt's   term  the  general  assignment  of  a  bankrupt's 

had    become    properlj'    vested     in    his  personal  estate   under  the  fiat  does  not 

assignees;  and  that  that  fact  sufficiently  vesta  term  of  years  in   the  assignees, 

appeared   upon  tiie   pleadings.      How-  unless  they  do  some   act   to    manifest 

(a)  1  T.  R.  93,  n.  a.  (6)  See  Marks  v.  Upton,  7  T.  R.  305. 


AURIOL    V.     MILLS. 


683 


their  assent  to  the  assignment,  as  re- 
gards the  term,  and  their  acceptance 
of  the  estate.  For  "an  assignment  by 
commissioners  of  bankrupt  is  the  exe- 
cution of  a  statutable  power  given  to 
them  for  a  particular  purpose,  viz., 
payment  of  the  bankrupt's  debts.  No- 
thing passes  from  them,  for  nothing  vi'as 
previously  vested  in  them.  Whatever 
passes,  passes  by  force  of  the  statute, 
for  the  purpose  of  effecting  the  object 
of  the  statute  ;  and,  therefore,  the  as- 
signees of  a  bankrupt  are  not  bound  to 
accept  a  term  of  years  that  belonged  to 
the  bankrupt,  subject  to  the  rent  and 
covenants;  for,  the  object  of  the  statute 
and  of  the  assigment  being  tiie  pay- 
ment of  the  bankrupt's  debts,  and  the 
assignees  under  the  commission  being 
trustees  for  that  purpose,  the  acceptance 
of  a  term  whicli,  instead  of  furnishing 
the  means  of  such  a  payment,  would 
diminish  the  fund  arising  from  oilier 
sources,  cannot  be  within  the  scope  of 
their  trust  or  duty.  And,  in  this  re- 
spect, such  a  term  differs  from  the  debts 
of  the  bankrupt,  and  his  unencumbered 
effects  and  chattels.  The  whole  estate 
remains  in  the  bankrupt  until  accept- 
ance by  the  assignees,  subject  to  their 
right  to  have  the  land  by  their  accept- 
ance." Per  Lord  Ellenborough,  C.  J., 
ibidem.  And  although  st.  1  &  2  VV.  4, 
c.  5b,  sect.  25,  has  now  abolished  the  . 
assignment,  and  rendered  the  appoint- 
ment of  the  assignees  equivalent  there- 
to; still,  as  it  has  given  to  the  appoint- 
ment an- effect  precisely  co-extensive 
with  that  of  the  assignment,  the  doc- 
trine of  Copeland  v.  Stephens  remains, 
as  far  as  that  statute  is  concerned,  in  full 
force,  So  that,  if  the  law  now  rested 
on  the  decisions  in  Mills  v.  Auriol, 
and  Copeland  v.  Stephens,  a  bankrupt 
lessee  would  be  liable  exactly  as  if  no 
bankruptcy  had  taken  place,  until  ac- 
ceptance of  the  lease  by  his  assignees; 
and;  after  their  acceptance  of  it,  he 
would  continue  liable  on  his  express 
covenants  in  the  same  manner  as  if  the 
lease  had  passed  into  the  hands  of  an 
ordinary  assignee.  And  this  it  is  im- 
portant to  remember,  because,  though 
the  enactment  now  about  to  be  cited 
improves  the  situation  of  the  bankrupt 
in  some  respects,  yet  there  are  very 
many  cases  to  which  it  does  not  extend, 
and  to  those  cases  the  above  doctrines 
continue  to  apply  in  full  force. 

St.   G.  4,   c.   16,  which   extends  the 
relief  afforded  by  a  previous  enactment 


in  49  G.  3,  121,  sect.  19,  enacts  in  sec- 
tion 75,  thai  any  bankrupt  entitled  to 
any  lease,  or  agreement  for  a  lease,  if 
the  assignees  accept  the  same,  shall  not 
be  liable  to  pay  any  rent  accruing  atler 
the  date  of  the  commission,  or  to  be  sued 
in  respect  of  any  subsequent  non  ob- 
servance or  non-performance  of  the  con- 
ditions, covenants,  or  agreements  there- 
in contained  : — And  if  the  assignees 
decline  the  same,  shall  not  be  liable  as 
aforesaid,  in  case  he  deliver  up  such 
lease  or  agreement  to  the  lessor  or  such 
person  agreeing  to  grant  a  lease,  with- 
in fourteen  days  after  he  shall  have 
had  notice  that  tJie  assignees  shall  have 
declared  as  aforesaid ;  and  if  the  as- 
signees shall  not  (upon  being  thereto 
required)  elect  whether  they  will  accept 
or  decline  such  lease  or  agreement  for 
a  lease, — the  lessor  or  person  so  agree- 
ing as  aforesaid,  or  any  person  entitled 
under  such  lessor  or  person  so  agreeing, 
shall  be  entitled  to  apply  by  petition  to 
the  Lord  Chancellor,  who  miy  order 
them  so  to  elect,  and  to  deliver  up  such 
lease  or  agreement  in  case  they  shall 
decline  the  same,  or  may  make  such 
other  order  therein  as  he  shall  think 
fit." 

It  has  been  held  that  parol  leases  fall 
within  this  section,  the  offer  to  deliver 
possession  being  equivalent  to  the  deli- 
very up  of  the  lease,  Slack  v.  Sharpe,  8 
A.  &  E.  ;^66. 

This  statute  applies  only  to  cases 
arising  between  lessor  and  lessee,  it 
does  not  apply  to  the  case  of  the  as- 
signee of  a  lease  becoming  bankrupt : 
Manning  v.  Flight,  3  B.  &  AA.  211. 
Taylor  v.  Young,  3  B.  &  A.  521.  In 
the  former  case  the  plaintiffs,  as  devi- 
sees of  John  Manning,  brought  cove- 
nant for  rent  against  the  defendants  as 
lessees,  who  pleaded  that  they  assigned 
to  one  VV.  P.  B.,  who  afterwards  be- 
came a  bankrupt;  that  the  arrears  of 
rent  sued  for  fell  due  after  the  date  of 
his  commission ;  tliat  the  assignees  de- 
clined the  lease,  and  that  the  bankrupt 
within  fourteen  days  delivered  it  up  to 
plaintiffs.  The  plaintiffs  replied,  that 
they  did  not  accept  it,  and,  upon,  demur- 
rer, the  court  held,  that  the  plea  was 
bad. — "  If,"  said  Littledale,  J.,  "  before 
the  statute,  there  had  been  an  assign- 
ment of  the  lease,  and  the  lessors  had 
accepted  rent  from  the  assignee,. they 
might,  notwithstanding,  have  proceeded 
by  covenant  against  the  lessees,  the  pri- 
vity  of  contract   not   being   destroyed. 


684 


SMITH    S     LEADINa    CASES. 


The  6  G.  4,  c.  16,  s.  75,  makes  no  dif- 
ference  in  this  respect;  it  contemplates 
the  case  of  a  bankrupt  lessee  only,  not 
of  an  assignee  of  the  term.  The  sta- 
tute operates  only  as  a  personal  dis- 
charge of  the  bankrupt,  for  it  does  not 
say  that  the  lease  and  covenants  shall 
be  at  an  end,  but  merely  that  the  bank- 
rupt lessee  shall  not  be  liable  to  be  sued 
in  respect  of  any  subsequent  non-obser- 
vance of  the  covenants." 

There  can  be  no  apportionment  of 
rent  under  the  section,  so  as  to  make 
the  bankrupt  liable  to  what  accrued  pre- 
vious to  the  bankruptcy,  Slack  v. 
Sharpe,  8  A.  &.  E.  366. 
.  When  the  assignees  accept  the  lease, 
the  discharge  of  the  bankrupt  is  so 
complete,  that,  even  though  he  should 
afterwards  come  in  as  the  assignee  of 
his  own  assignees,  he  will  incur  no 
greater  liabilities  than  any  other  person 
would  in  the  same  character.  Doe  d. 
Cheere  v.  Smith,  5  Taunt.  800.  But  a 
surety  for  a  lessee  is  liable  for  breaches 
of  covenant  which  occurred  after  the 
date  of  a  commission  of  bankruptcy 
against  the  lessee  but  before  the  deli- 
very up  of  the  lease  by  the  bankrupt  to 
the  lessor  under  6  G.  4,  c.  16,  s.  75 ; — 
for,  even  assuming  that  delivery  up  to 
operate  as  a  surrender,  still  the  surren- 
der of  the  lease  cannot  be  held  to  relate 
back  to  the  date  of  the  fiat  or  commis- 
sion.    Tuck  V.  Fyson,  6  Bing.  331, 

Wherever  the  provisions  of  the  6  G. 
4,  c.  16,  s.  75,  do  not  apply,  (and  there 
are  several  cases  besides  that  of  the 
assignee  of  a  lease  to  which  they  would 
probably  be  held  inapplicable,  for  in- 
stance, they  would  probably  be  held  not 
to  include  the  case  of  the  lessee  be- 
coming bankrupt  after  having  made  an 
under-lease,)  in  all  such  cases  recourse 
must  be  had  to  the  doctrines  established 
in  Mills  v.  Auriol,  and  Copeland  v.  Ste- 
phens, in  order  to  ascertain  the  extent 
of  the  bankrupt's  liability. 

In  cases  where  the  provisions  of  the 
act  apply,  the  course  to  be  pursued  by 


the  bankrupt,  in  order  to  obtain  his  dis- 
charge, depends  upon  the  adoption  or 
non-adoption  of  the  lease  by  his  as- 
signees; since,  if  they  adopt  it,  he  has 
merely  to  remain  quiescent :  but  if  they 
decline  it,  he  must  then,  within  14 
days  after  he  has  had  notice  of  their 
election,  deliver  the  lease  up  to  the  les- 
sor;— and,  in  cases  where  the  provisions 
of  the  act  do  not  apply,  the  extent  of 
the  bankrupt's  liability  also  depends 
upon  the  adoption  or  rejection  of  the 
lease  by  the  assignees.  It  has  frequently, 
therefore,  become  important  to  inquire 
what  acts  on  the  part  of  the  assignees 
amount  to  an  adoption  of  the  lease;  and 
the  general  rule  upon  this  subject  is, 
that  any  intermeddling  with  the  estate 
in  the  capacity  of  owner  amounts  to 
an  adoption  of  it;  but  that  a  mere  ex- 
periment to  ascertain  its  value  has  not 
such  an  effect.  Thus,  where  the  as- 
signees put  up  the  lease  to  sale,  and 
accepted  a  deposit  from  the  purchaser, 
they  were  held  to  have  adopted  it. 
Hastings  v.  Wilson,  Holt,  290.  See 
also  Hanson  v.  Stevenson,  1  B.  &  A. 
208;  Welsh  v.  Myers,  4  Campb.  368; 
Hancock  v.  Welsh,  1  Campb.  347 ;  Tho- 
mas v.  Pemberton,  7  Taunt.  206;  Clarke 
v.  Hume,  1  R.  &  M.  207;  Page  v.  God- 
der,  2  Star.  309;  Gibson  v.  Courthorpe, 
1  D.  &  R.  205.  But  in  the  case  of 
Turner  v.  Richardson,  7  East,  335,  the 
assignees  never  entered  on  the  premises; 
and  the  question  was,  whether  the  put- 
ting up  the  lease  to  sale  by  auction  was 
a  taking  possession  ;  the  court  held  that 
it  v^as  not  so,  it  being  a  mode  used  by 
the  assignees  for  ascertaining  whether 
it  was  advisable  for  them  to  take  posses- 
sion or  no.  See  Wheeler  v.  Bramah,  3 
Camp.  340;  Hill  v.  Dobie,  8  Taunt. 
325. 

If  the  assignees  adopt  the  lease,  they 
may  exonerate  themselves  froui  all  lia- 
bilities by  assigning  it  over  in  the  same 
way  as  an  ordinary  assignee  may.  On- 
slow V.  Corrie,  2  Mod.  330. 


Under  the  bankrupt  system  of  England,  as  it  existed  at  the  time  of  the 
decision  in  Auriol  v.  Mills,  and  agreeably  to  the  provisions  of  the  first  bank- 
rupt law  of  the  United  Stales,  while  in  force,  the  discharge  of  a  bankrupt, 
merely  had  the  efiecl  of  releasing  him  from  his  liability  for  debts  existing  at 
the  lime,  leaving  him  fully  liable  for  ihpse  which  might  arise  in  future,  even 


MILLS    V.    AURIOL.  085 

when  called  into  being  by  contracts  made  before  the  delivery  to  him  of  liis 
certificate.  There  must  at  least  have  been  "debitum  in  prscsenti,"  although 
"solvendum  in  futuro,"  to  make  the  certificate  a  bar  to  any  subsequent  suit 
for  recovery.  Lansing  v.  Prendergast,  9  Mass.  128.  The  best  test  of  the 
continuance  of  the  bankrupt's  liabilities,  under  the  system  in  question,  will 
be  ftjund  in  examining  whether  the  debt  was  susceptible  of  being  proved 
under  the  commission.  If  it  were  not,  there  would  have  been  evident 
injustice  in  excluding  a  creditor  from  the  right  to  an  action,  who  had  been 
deprived  of  all  possibility  of  sharing  in  that  division  of  the  bankrupt's  estate, 
which  is  the  legal  substitute  for  his  demand.  Rathbone  v.  Murray,  1 
Caines,  588;  Selfridge  v.  Gill,  4  Mass.  96.  Where  the  debt  was  subject 
to  any  contingency,  and  was  not  a  definite  sura  absolutely  payable  at  all 
events,  it  of  course  could  not  be  proved  under  the  commission,  without 
some  special  provision  such  as  has  recently  been  introduced  in  England, 
and  the  bankrupt  therefore  remained  liable  for  it,  notwithstanding  his  dis- 
charge. This  was  the  case,  even  with  regard  to  covenants  or  promises  for 
the  payment  of  money,  unless  where  the  consideration  was  executed,  and' 
the  amount  certain.  Thus  in  Sparhawk  v.  Broome,  6  Binney,  256,  a 
bankrupt  was  held  liable  on  his  indorsement  of  a  note,  between  the  issuing 
of  the  commission  and  the  date  of  the  certificate,  as  his  obligation  to  pay 
did  not  attach  until  the  subsequent  default  of  the  maker.  The  same  gen- 
eral doctrine  was  laid  down  in  the  case  of  Murray  v.  De  Rottenham,  6 
Johns.  Chan.  52,  by  Chancellor  Kent,  who  said  that  a  bankrupt  was 
answerable  after  his  discharge,  upon  his  previous  covenant  to  pay  the  taxes 
on  land,  which  he  had  conveyed  to  a  trustee  for  the  benefit  of  certain  of 
his  creditors. 

The  same  principles  would  have  applied,  without  exception,  to  the  case 
of  leases,  and  prevented  the  discharge  of  the  bankrupt  from  his  future  con- 
tingent liability  for  rent,  had  it  not  been  for  the  common  law  doctrine  under 
which  an  assignment  of  a  lease,  with  the  consent  of  the  landlord,  and 
acceptance  by  the  assignee,  removes  the  obligation  implied  by  law,  from, 
the  acceptance  of  premises  subject  by  the  demise  to  reddendum  of  services 
or  money.  As  a  consequence  of  this  doctrine.  Lord  Mansfield  decided,  in 
Wad  ham  v.  Marlow,  that  the  assignment  of  a  lease,  under  the  operation  of 
the  bankrupt  law,  operated  as  a  bar  to  any  action  of  debt  or  covenant  on  the 
reddendum  ;  since  the  assent  of  the  lessor,  which  is  necessary  to  give  the 
effect  of  discharge  to  an  assignment,  was,  in  the  present  instance  to  be 
implied,  as  every  man's  assent  is  to  be  presumed  to  an  act  of  parliament. 
But  the  Court  of  King's  Bench  in  England,  (Copeland  v.  Stephens,)  and 
the  Supreme  Court  of  New  York,  about  the  same  time  discovered,  that 
although  the  landlord's  assent  was  to  be  presumed,  as  a  matter  of  necessity, 
according  to  the  intent  of  the  bankrupt  acts,  that  of  the  assignee  was  not  ; 
since  as  he  is  merely  placed  in  his  position  for  the  benefit  of  creditors, 
nothing  passes  to  him  of  the  bankrupt's  estate,  which  is  of  a  nature  to  be 
useless  or  chargeable  to  the  fund  out  of  which  they  are  to  be  paid.  Cope- 
land  V.  Stephens,  1  Barn.  &  Aid.  593;  Kendricks  v.  Judah,  2  Caines,  25; 
Sparhawk  v.  Broome,  6  Binney,  256.  These  courts  therefore  decided,  that 
unless  the  assignees,  in  the  exercise  of  their  discretion,  did  some  act  indi- 
cating an  intention  to  accept  the  premises,  nothing  passed  from  (he  bankrupt 
by  the  assignment,  and  consequently,  that  he  continued  liable  to  the  obliga- 


686  smith's   leading  cases. 

gation  of  the  reddendum,  and  of  the  imphed  covenants  of  his  lease,  for  all 
sums  becoming  due  after  his  discharge. 

But  this  exception  to  the  bankrupt's  liability  for  all  future  contingent 
debts,  growing  out  of  the  peculiar  character  of  the  law  governing  the  .rela- 
tion between  landlord  and  tenant,  lias  never  been  applied,  or  susceptible  of 
application,  to  express  covenants  for  the  payment  of  rent,  or  the  peformance 
of  any  other  duty.  These,  even  'when  running  with  the  land,  so  as  to 
impose  their  obligation  on  an  assignee,  still  remained  binding  on  the  tenant, 
and  being  future  and  contingent  in  their  nature,  came  under  the  general 
rule,  and  could  not  be  discharged  by  the  certificate. 

Although  it  would  seem  doubtful  whether  this  point  has  ever  been 
adjudged  in  the  case  of  a  bankrupt,  in  any  of  the  courts  of  last  resort  in  the 
United  States,  it  has  been  frequently  applied  in  the  analogous -instance  of  a 
discharge  under  the  insolvent  laws.  As  a  general  rule,  future  contingent 
debts  are  not  affected  by  a  discharge  of  this  sort,  although  they  may  grow 
out  of  contracts  or  transactions  made  before  the  discharge,  on  the  broad 
general  principle,  that  the  creditor  not  being  able  to  come  in  under  the 
assignment,  should  not  be  deprived  of  his  remedy  against  his  debtor. 
Frost  V.  Carter,  1  Johns.  Cases,  73;  BueJ  v.  Gordon,  6  Johns.  126; 
Mechanics  Bank  v.  Capron,  15  Johns.  567.  Of  course  therefore  the  credi- 
tor will  not  be  barred  of  any  of  his  rights  for  the  recovery  of  rent  accruing  in 
futuro,  save  where,  in  the  absence  of  any  express  covenant,  there  has  been 
not  merely  assignment,  but  acceptance  by  the  assignee.  But  in  the  case  of 
express  covenants  to  pay  rent,  the  principle  of  Auriol  v.  Mills,  will  apply, 
and  the  prior  discharge  of  the  lessee  as  insolvent,  cannot  be  resorted  to  by 
him,  as  a  protection  against  the  claim  of  the  covenantor.  Lansing  v.  Pren- 
dergast,  9  Johns.  127  ;  Hamilton  v.  Atherton,  1  Ashmead,  67;  Warder  v. 
Simpson,  2  Wharton's  Digest  Penna.  Reports,  63.  It  may  be  observed, 
that  as  the  assignment  of  an  estate  under  the  insolvent  laws,  is,  in  many  of 
the  states,  the  act  of  the  party,  and  not,  as  in  the  case  of  bankruptcy,  the 
act  of  the  law,  there  may  be  some  doubt  as  to  whether  the  consent  of  the 
landlord,  to  receive  the  assignee  as  his  tenant,  be  not  necessary  to  relieve  an 
insolvent  lessee,  from  the  effect  even  of  his  implied  covenants. 

The  whole  doctrine  of  Auriol  v.  Mills,  as  applied  to  cases  of  bankruptcy, 
depends  entirely  upon  the  character  and  provisions,  of  each  particular  bank- 
rupt law  which  may  be  enacted,  since  when  provisions  are  introduced,  to 
enable  the  creditor  on  the  one  hand,  to  prove  future  and  contingent  claims 
at  a  valuation,  and  on  the  other,  to  make  the  certificate  a  bar  to, future  suit 
on  such  claims,  both  the  express  and  implied  covenants  of  the  bankrupt, 
may  be  discharged,  whether  contained  in  a  lease  under  seal,  or  any  other 
instrument.  Although  the  first  American  bankrupt  act,  and  those  which 
formerly  existed  in  England,  did  not  contain  provisions  of  this  nature,  and 
consequently  gave  room  for  the  decision  of  Auriol  v.  MiJls,  yet  by  the 
system  of  bankruptcy  now  prevailing  in  the  latter  country,  and  under  that 
recently  in  fbrce  in  the  United  States,  the  right  of  the  creditor  to  come  in 
for  a  dividend,  and  of  the  bankrupt  to  a  discharge,  have  been  rendered  co- 
extensive, as  it  respects  all  claims  existing  at  the  period  of  bankruptcy. 
This  course  of  the  law  is,  in  England,  rendered  equitable  in  the  case  of 
leases,  by  a  provision  rendering  it  necessary  for  the  discharge  of  a  bankrupt, 
that  the  habililies  of  the  lease  should  either  be  accepted  by  the  assignees,  or 


MASTER    V.     MILLER.  687 

the  lease  itself  be  surrendered  to  the  landlord.  Eden  on  Bankrupt  Law, 
page  239.  The  relations  of  landlord  and  tenant  were  not  specially. pro- 
vided for,  in  the  bankrupt  act  recently  existing  in  this  country,  and  had  the 
system  continued  longer  in  force,  great  difficulties  would  no  doubt  have,  in 
consequence,  been  experienced  by  the  courts,  in  so  construing  its  provi- 
sions, as  to  prevent  them  from  operating  unjustly,  as  between  the  parties  to 
leases. 

H. 


^MASTER  V.  MILLER.  [*458] 


TRINITY— 31  G.  3.— K.  B.  &  CAM.  SCACC. 

[reported  4  T.  R.  320,  and  2  hen.  bl.  140.] 

An  unauthorised  alteration  of  the  date  of  a  billof  exchange,  after  acceptance,  whereby  the 
payment  vvouhl  be  accelerated, avoids  the  instrument;  and  no  action  can  be  aflerwardd' 
brougiit  upon  it,  even  by  an  innocent  holder  for  a  valuable  consideration.t 

The  first  count  in  this  declaration  was  in  the  usual  form,  by  the  indorsees 
of  a  bill  of  exchange  against  the  acceptor;  it  stated  that  Feel  and  Co.,  on 
the  20lh  of  March,  1788,  drew  a  bill  for  974/.  10s.  on  the  defendant,  pay- 
able three  months  after  date  to  Wilkinson  and  Cooke,  who  indorsed  to  the 
plaintiffs.  The  second  count  stated  the  bill  to  have  been  drawn  on  the  26th 
of  March.  There  were  also  four  other  counts  ;  for  money  paid,  laid  out, 
and  .expended  ;  money  lent  and  advanced;  money  had  and  received  ;  and 
on  an  account  stated.  The  defendant  pleaded  the  general  issue;  on  the 
trial  of  which  a  special  verdict  was  found. 

It  states,  that  Peel  and  Co.,  on  the  2Gth  of  March,  1788,  drew  their  bill 
on  the  defendant,  payable  three  months  after  date  to  Wilkinson  and  Cooke, 
for  974/.  10s.,  "  which  said  bill  of  exchange,  made  by  the  said  Peel  and 
Co.,  as  the  same  hath  been  altered,  accepted,  and  written  upon,  as  hereafter 
mentioned,  is  now  produced,  and  read  in  evidence  to  the  said  jurors,  and  is 
now  expressed  in  the  words  and  figures  following;  to  wit,  'June  23d,  974/. 
10s.,  Manchester,  March  20,  1788,  three  months  after  date  to  pay  to  the 
order  of  Messrs.  Wilkinson  and  Cooke  974/,  10s.,  received,  as  advised, 
Peel,  Yates,  and  Co.  To  Mr.  Cha.  Miller,  C.  M.,  23d  June,  1788.'  That 
Peel  and  Co.  delivered  the  said  bill  to  Wilkinson  and  Cooke,  which  the 
defendant  afterwards  and  before  the  alteration  of  the  bill  hereinafter  men- 

t  See  Hutchins  v.  Scott,  9  Mee.  &,  Welsh.  809,  where  an  agreennent  which  had  been 
altered  while  in  the  custody  of  the  person  producing  it,  was  held  admissible  in  evidence 
for  some  purposes. 


688  smith's   leading   cases. 

tioned  accepted,  that  Wilkinson  and  Cooke  afterwards  indorsed  the  said  bill 
ip-Q-i  to  the  plaintiffs,  for  a  valuable  consideration  *before  that  time  given, 
L  J  and  paid  by  them  to  Wilkinson  and  Cooke  for  the  same.  That  the 
said  bill  of  exchange,  at  the  time  of  making  thereof  and  at  the  time  of  the 
acceptance,  and  when  it  came  to  the  hands  of  Wilkinson  and  Cooke  as 
aforesaid,  bore  date  on  the  26th  day  of  March,  1788,  the  day  of  making  the 
same  :  and  that  after  it  so  came  to  and  whilst  it  remained  in  the  hands  of 
Wilkinson  and  Cooke,  the  said  date  of  the  said  bill,  without  the  authority 
or  privity  of  defendant,  was  altered  by  some  person  or  persons  to  the  jurors 
aforesaid  unknown,  from  the  26lh  day  of  March,  1788,  to  the  20lh  day  of 
March,  1788.  That  the  words  'June,  23d,'  at  the  top  of  the  bill,  were  there 
inserted  to  mark  that  it  would  become  due  and  payable  on  the  23d  of  June, 
next  after  the  date  ;  and  that  the  alteration  hereinbefore  mentioned,  and  the 
blot  upon  the  date  of  the  bill  of  exchange,  now  produced  and  read  in  evi- 
dence, were  on  the  bill  of  exchange,  when  it  was  carried  to  and  came  into 
the  hands  and  possession  of  the  plaintiffs.  That  the  bill  of  exchange  was  on 
the  23d  of  June,  and  also  on  the  28th  of  June,  1788,  presented  to  the  defen- 
dant for  payment;  on  each  of  which  days  respectively  he  refused  to  pay." 
The  verdict  also  stated  that  the.  bill  so  produced  to  the  jury  and  read  in 
evidence  was  the  same  bill  upon  Avhich  the  plaintiffs  declared,  &c. 

This  case  was  argued  in  Hilary  term  last,  by  Wood  for  the  plaintiffs,  and 
Mingay  for  the  defendant ;  and  again  on  this  day  by  Chambre  for  the 
plaintiffs,  and  Erskine  for  the  defendant. 

For  the  plaintiffs  it  was  contended,  that  they  were  entitled  notwithstand- 
ing the  alteration  in  the  bill  of  exchange,  to  recover  according  to  the  truth 
of  the  case  which  is  set  forth  in  the  second  count  of  the  declaration,  namely, 
upon  a  bill  dated  the  26th  of  March ;  which  the  special  verdict  finds  was 
in  point  of  fact  accepted  by  the  defendant.  More  especially  as  it  is  clear 
that  the  plaintiffs  are  holders  for  a  valuable  consideration,  and  had  no  con- 
cern whatever  in  the  fraud  that  was  meditated,  supposing  any  such 
appeared.  The  only  ground  of  objection  which  can  be  suggested  is  upon 
the  rule  of  law  relative  to  deeds,  by  which  they  are  absolutely  avoided,  if 
altered  even  by  a  stranger  in  any  material  part,  and  upon  a  supposed 
analogy  between  those  instruments  and  bills  of  exchange  ;  and  upon  inves- 
r*ARn~\  ^'o^^''^o  *'^^  grounds  on  which  the  rule  stands  as  applied  to  deeds, 
L  -'  it  will  be  found  altogether  inapplicable  to  bills  :  and  if  that  be 
shown,  the  objection  founded  on  the  supposed  analogy  between  them  must 
fall  with  it.  The  general  rule  respecting  deeds  is  laid  down  in  Pigoi's  case, 
11  Co.  27,  where  most  of  the  authorities  are  collected;  from  thence  it 
appears,  that  if  a  deed  be  altered  in  a  material  point,  even  by  a  stranger, 
without  the  privity  of  the  obligee,  it  is  thereby  avoided  ;  and  if  the  altera- 
tion be  made  by  the  obligee,  or  with  his  privity,  even  in  an  immaterial  part, 
it  will  also  avoid  the  deed.  Now  that  is  confined  merely  to  the  case  of 
deeds,  and  does  not  in  the  terms  or  principles  of  it  apply  to  any  other 
instruments  not  executed  with  the  same  solemnity.  There  are  many  forms 
requisite  to  the  validity  of  a  deed,  which  were  originally  of  great  import- 
ance to  mark  the  solemnity  and  notoriety  of  the  transaction  ;  and  on  that 
account  the  grantees  always  were,  and  still  are  entitled  to  many  privileges 
over  the  holders  of  other  instruments.  It  was  therefore  reasonable  enough 
that  the  party  in  whose  possession  it  was  lodged,  should,  on  account  of  its 


MASTER     V.     MILLER.  689 

superior  authenticity,  be  bound  to  preserve  it  entire  with  the  strictest  atten- 
tion, and  at  the  peril  of  losing  the  benefit  of  it  in  the  case  of  any  material 
alteration  even  by  a  stranger  ;  and  that  he  is  the  better  enabled  to  do  from 
the  nature  of  the  instrument  itself,  which,  not  being  of  a  negotiable  nature, 
is  not  likely  to  meet  with  any  mutilation,  unless  through  the  fraud  or  negli- 
gence of  tlie  owner;  whereas  bills  of  exchange  are  negotiable  instruments, 
and  are  perpetually  liable  to  accidents  in  the  course  of  changing  hands,  from 
the  inadvertence  of  those  by  whom  they  are  negotiated,  without  any  possi- 
bility of  their  being  discovered  by  innocent  indorsees,  who  are  ignorant  of 
the  form  in  which  they  were  originally  drawn  or  accepted  :  and  the  present 
is  a  strong  instance  of  that ;  for  the  plaintiffs  cannot  be  said  to  be  guilty  of 
negligence  in  not  inquiring  how  the  blot  came  on  the  bill,  which  mere 
accident  might  have  occasioned.  That  the  same  reasons,  upon  which  the 
decisions  of  the  courts  upon  deeds  have  been  grounded,  will  not  support 
such  judgments  upon  bills,  will  best  appear  by  referring  to  the  authorities 
themselves.  When  a  deed  is  pleaded,  there  must-be  a  profert  in  curiam, 
unless  as  in  Read  v.  Brookman,(a)  it  be  lost  or  destroyed  by  p#^f.,-| 
accident,  which  must  however  be  stated  in  *the  pleadings.  The  L  J 
reason  of  which  is,  that  anciently  the  deed  was  actually  brought  into  court 
for  the  purpose  of  inspection  ;  and  if,  as  is  said  in  10  Co.  92,  b.,  the  judges 
found  that  it  had  been  rased  or  interlined  in  any  material  part,  they  adjudged 
it  to  be  void.  Now  as  that  was  the  reason  why  a  deed  was  required  to  be 
pleaded  with  a  profert,  and  as  it  never  was  necessaay  to  make  a  profert  of 
a  bill  of  exchange  in  pleading,  it  furnishes  a  strong  argument  that  the 
reason  applied  solely  to  the  case  of  deeds.  So  deeds,  in  which  were  erasures, 
were  held  void,  because  they  appeared  on  the  face  of  them  to  be  suspicious. 
13  Vin.  Abr.  tit.  Faits,  37,  38  ;  Bro.  Abr.  Faits,  pi.  11,  referring  to  44 
Edward  3,  42.  Nor  could  the  supposition  of  fraud  have  been  the  ground 
on  which  that  rule  was  founded  with  respect  to  deeds ;  for  in  JVIoor,  35,  pi. 
116,  a  deed  which  had  been  rased  was  held  void,  although  the  party  him- 
self who  make  it  had  made  the  erasure;  which  was  permitting  a  party  to 
avail  himself  of  his  own  fraud  :  but  it  is  impossible  to  contend  that  the  rule 
can  be  carried  to  the  same  extent  as  to  bills ;  nor  is  it  denied  but  that  if  the 
blot  here  had  been  niade  by  the  acceptor  himself,  he  would  still  have  been 
bound.  In  Keilw.  162,  it  is  said  that  if  A.  be  bound  to  B.  in  20/.  and  B. 
rase  out  10/.  all  the  bond  is  void,  although  it  is  for  the  advantage  of  the 
obligor ;  and  even  where  an  alteration  in  a  deed  was  made  by  the  consent 
of  both  the  parties,  still  it  was  held  to  avoid  it.  2  Roll.  Abr.  29,  letter  U. 
pi.  5.  (Lord  Kenyon  observed  that  there  had  been  decisions  to  the  con- 
trary since.)  Fraud  could  not  be  the  principle  on  which  those  causes  were 
determined  ;  Avhereas  it  is  the  only  principle  on  which  the  rule  contended 
for  can  be  held  to  extend  to  bills  of  exchange,  but  which  is  rebutted  in  the 
present  case  by  the  fact  found  in  the  special  verdict.  According  to  the 
same  strictness  where  a  mere  mistake  was  corrected  in  a  deed,  and  not  known 
by  whom,  it  was  held  to  avoid  it.  2  Rol.  Abr.  29.  pi.  6 ;  and  it  does  not 
abate  the  force  of  the  argument  that  the  law  is  relaxed  in  these  respects, 
even  as  to  deeds,  for  the  question  still  remains,  whether  at  any  time  bills  of 
exchange  were  construed  with  the  same  rigour  as  deeds  ?     The  principle 

(a)  3T.R.  151. 

Vol.  I 44 


690  smith's  leading  cases. 

upon  which  all  these  cases  relative  to  deeds  were  founded  was,  that  nothin£f 
could  work  any  alteration  in  a  deed,  except  another  deed  of  equal  authen- 
r*4fi2"l  ^^^^'•y  '  ^'^^  ^^  ^^^  P^^ty  who  had  possession  of  *the  deed  was  bound 
L  -^  to  keep  it  securely,  it  might  well  be  presumed  that  any  material 
alteration  even  by  a  stranger  was  with  his  connivance,  or  at  least  through 
his  culpable  neglect.  In  many  of  the  cases  upon  the  alteration  of  deeds, 
the  form  of  the  issue  has  weighed  with  the  court ;  as  in  1  Rol.  Rep.  40, 
(which  is  also  cited  in  Pigot's  case,  11  Go.  27,)  and  Michael  v.  Scockwith, 
Cro.  Eliz.  120,  in  both  which  cases  the  alteration  was  after  plea  pleaded ; 
and  on  that  ground  the  court  held  it  was  still  to  be  considered  as  the  deed  of 
the  party  on  non  est  factum.  Now  the  form  of  the  issue  in  actions  upon  deeds 
and  those  iipon  bills  is  very  different :  in  the  one  case,  the  issue  simply  is, 
tvhether  it  is  the  deed  of  the  parti/,  which  goes  to  the  time  of  the  plea 
pleaded?  as  appears  from  the  case  before  cited,  and  from  5  Co.  119,  b., 
and  Dy.  59 ;  but  here  the  issue  is,  tvhether  the  defendant  promised,  at  the 
time  of  the  acceptance,  to  pay  the  contents  ?  The  form  of  the  issue  is  upon 
his  promise  arising  by  implication  of  law  from  the  act  of  acceptance,  which 
is  found  as  a  fact  by  the  special  verdict  agreeable  to  the  bill  declared  on 
in  the  second  count;  and  in  no  instance  where  an  agreement  is  proved 
merely  as  evidence  of  a  promise,  is  the  party  precluded  from  showing  the 
truth  of  the  case.  Not  only  therefore  the  forms  of  pleading  are  different  in 
the  two  cases,  but  the  decisions  which  have  been  made  upon  deeds,  from 
whence  the  rule  contended  for  as  to  erasures  and  alterations  is  extracted, 
are  altogether  inapplicable  to  bills.  The  reason  for  such  rigorous  strictness 
in  the  one  case,  do  not  exist  in  the  other.  On  the  contrary,  all  the  cases 
upon  bills  have  proceeded  upon  the  most  reasonable  and  equitable  principles 
with  respect  to  innocent  holders  for  a  valuable  consideration.  The  case  of 
Minet  V.  Gibson,(a)  goes  much  farther  than  the  present:  for  there  this 
court,  and  afterwards  the  House  of  Lords,  held  that  it  was  competent  to 
inquire  into  circumstances  extraneous  to  the  bill,  in  order  to  arrive  at  the 
truth  of  the  transaction  between  the  parties  ;  although  such  circumstances 
operate  to  establish  a  different  contract  from  that  which  appeared  upon  the 
face  of  the  bill  itself;  whereas  the  evidence  given  in  this  case,  and  the  facts 
found  by  the  special  verdict,  are  in  order  to  show  what  the  bill  really  was ; 
which  it  is  competent  for  these  parties  to  do  against  whom  no  fraud  can  be 
r*4fi^1  ^"^P*^'^^'  if  ^"y  pxist.  If  the  blot  had  fallen  on  the  paper  *by  mere 
L  -J  accident,  it  cannot  be  pretended  that  it  would  have  avoided  the  bill; 
and  non  constat  upon  this  finding  that  it  did  not  so  happen.  Even  if  felony 
were  committed  by  a  third  person,  through  whose  hands  the  bill  passed, 
although  that  party  could  not  recover  upon  it  himself,  yet  his  crime  shall 
not  affect  an  innocent  party,  to  whom  the  bill  is  indorsed  or  delivered  for  a 
valuable  consideration.  In  Miller  v.  Race, (6)  where  a  bank-note  had  been 
stolen  and  afterwards  passed  bona  fide  to  the  plaintiff,  it  was  held  that  he 
might  recover  it  in  trover  against  the  person  who  had  stopped  it  for  the  real 
owner.  And  the  same  point  was  held  in  Peacock  v.  Rhodes,(c)  where  the 
bill  was  payable  to  order.  Again  in  Price  v.  Neale,(f/)  it  was  held  that  an 
acceptor,  who  had  paid  a  forged  bill  to  an  innocent  indorsee,  could  not 

(a)  3  T.  R.  481,  in  B,  R.,  and  1  H.  BI.  569,  in  Dom,  Proc. 

(6)  1  Burr.  452.  (c)  Dougl.  633.  ((f)  3  Burr.  1354. 


MASTER    V.     MILLER.  691 

recover  back  the  money  from  hin.  Now  if  it  be  no  answer  to  an  action 
upon  a  bill  against  the  acceptor  to  show  that  it  was  a  forgery  in  its  original 
making  by  a  third  person's  having  feigned  the  hand-writing  of  the  drawer, 
still  less  ought  any  subsequent  attempt  at  forgery,  even  if  that  had  been 
found  which  is  not,  to  weigh  against  an  innocent  holder.  But  it  would 
have  been  impossible  to  have  recovered  in  any  of  these  cases  if  the  deed 
had  been  forged  in  any  respect,  even  by  strangers  to  it ;  which  shows  that 
these  several  instruments  cannot  be  governed  by  the  same  rules.  And  so 
little  have  the  forms  of  bills  of  exchange  and  notes  been  observed,  when  put 
in  opposition  to  the  truth  of  the  transaction,  that  in  Russell  v.  Langstaffe,(a) 
the  court  held,  in  order  to  get  at  the  justice  of  the  case,  that  a  person,  who 
had  indorsed  his  name  on  blank  checks  which  he  had  entrusted  to  another, 
was  liable  to  an  indorsee  for  the  sums  of  which  the  notes  were  afterwards 
drawn  ;  and  yet  the  form  of  pleading  supposes  the  note  to  have  been  a 
perfect  instrument,  and  drawn  before  the  indorsement.  But  the  case  which 
is  most  immediately  in  point  to  the  present,  is  that  of  Price  v.  Shute,  E.  33 
Car.  2,  in  B.  R.  ;(6)  there  a  bill  was  drawn  payable  the  first  of  January  ; 
the  person  upon  whom  it  was  drawn  accepted  it  to  be  paid  the  first  of 
March  ;  the  holder,  upon  the  bill's  being  brought  back  to  him,  perceiving 
this  enlarged  acceptance,  struck  out  the  first  of  March,  and  put  in  the  first 
of  January  ;  and  then  sent  the  bill  to  be  paid,  which  the  acceptor  refused  ; 
whereupon  the  payee  struck  out  the  first  of  January,  and  put  in  the  pjtfip^-i 
*first  of  March  again  :  and  in  an  action  brought  on  this  bill,  the  L  J 
question  was,  whether  these  alterations  did  not  destroy  it  ?  and  it  was  ruled 
they  did  not.  This  case  therefore  has  settled  the  doubt ;  and  having  never 
been  impeached,  but  on  the  contrary  recognized,  as  far  as  general  opinion 
goes,  by  having  been  inserted  in  every  subsequent  treatise  upon  the  subject, 
it  seems  to  have  been  acted  upon  ever  since.  And  it  would  be  highly 
mischievous  if  the  law  were  otherwise  ;  for  however  negligent  the  owner 
of  a  deed  may  be  supposed  to  be,  who  lets  it  out  of  his  possession,  the 
holder  of  a  bill  of  exchange  is  by  the  ordinary  course  of  such  transactions 
obliged  to  trust  it,  even  in  the  hands  of  those  whose  interest  it  is  to  avail 
themselves  of  this  sort  of  objection.  For  it  is  most  usual  for  the  bill  to  be 
left  for  acceptance,  and  afterwards  for  payment,  in  the  hands  of  the  acceptor, 
who  may  be  tempted  to  put  such  a  blot  on  the  date  as  may  not  be  observed 
at  the  time,  through  the  confidence  of  the  parties.  But  even  if  the  altera- 
tion should  be  considered  as  having  destroyed  the  bill,  why  may  not  evi- 
dence be  given  of  its  Contents,  upon  the  same  principle  as  governed  the 
case  of  Read  v.  Brokman,  3  T.  Rep.  151  ?  where  it  was  held  that  pleading 
that  a  deed  is  lost  by  time  and  accident,  supersedes  the  necessity  of  a  pro- 
fert.  But  at  any  rate  the  plaintiffs  are  entitled  to  recover  on  the  general 
counts  for  money  paid,  and  money  had  and  received,  on  the  authority  of 
Tatlock  V.  Harris,  3  T,  R.  174  ;  for  though  it  is  not  expressly  slated  that 
so  much  money  was  received  by  the  defendant,  yet  that  is  a  necessary 
inference  from  the  fact  of  acceptance  which  is  found. 

For  the  defendant  it  was  contended,  that  the  broad  principle  of  law  was, 
that  any  alteration  of  a  written  instrument  in  a  material  part  thereof,  avoided 
such  instrument ;  and  that  the  rule  was  not  merely  confined   to  deeds, 

(a)  Dougl.  514.  (6)  2  Moll.  c.  10,  s.  23. 


692  smith's   leading   cases. 

though  it  happened  that  the  illustration  of  it  was  to  be  found  among  the  old 
cases  upon  deeds  only  because  formerly  most  written  undertakings  and 
obligations  were  in  that  form.  This  principle  of  law  was  founded  in  sound 
sense  ;  it  was  calculated  to  prevent  fraud,  and  deter  men  from  tampering 
with  written  securities  ;  and  it  would  be  directly  repugnant  to  the  policy  of 
such  a  law  to  permit  the  holder  of  a  bill  to  attempt  a  fraud  of  this  kind 
with  impunity ;  which  would  be  the  case,  if,  after  being  detected  in  the 
r*4fi^l  ^'^^^'^P''  ^^^  were  *not  to  be  in  a  worse  situation  than  he  was  before. 
L  J  If  any  difference  were  to  be  made  between  bills  of  exchange  and 
deeds,  it  should  rather  be  to  enforce  the  rule  with  greater  strictness  as  to  the 
former  ;  for  it  would  be  strange  that,  because  they  were  more  open  to  fraud 
from  the  circumstance  of  passing  through  many  hands,  the  law  should  relax 
and  open  a  wider  door  to  it  than  in  the  case  of  deeds,  where  fraud  was  not 
so  likely  to  be  practised.  The  principle  laid  down  in  Pigol's  case,  11  Co. 
27,  is  not  disputed  as  applied  to  deeds.  But  the  first  answer  attempted  to 
be  given  is,  that  the  rule  as  to  deeds  is  sui  generis,  and  does  not  extend 
to  other  documents  of  an  inferior  nature,  because  it  arises  from  the  soleqnn 
sanction  attending  the  execution  of  instruments  under  seal.  As  to  this,  it 
is  sufRcient  to  say  that  no  such  reason  is  suggested  in  any  of  the  books  ; 
but  the  rule  stands  upon  the  broad  ground  of  policy,  which  applies  at  least 
as  strongly  to  bills  as  to  deeds,  for  the  reason  above  given.  Then  it  is  said 
that  there  is  a  material  distinction  between  the  several  issues  in  the  two 
cases.  But  the  difference  is  more  in  words  than  in  sense;  the  substance  of 
the  issue  in  both  cases  is,  whether  in  point  of  law  the  party  be  liable  to 
answer  upon  the  instrument  declared  on  ?  and  therefore  any  matter  which 
either  avoids  it  ab  initio,  or  goes  in  discharge  of  it,  may  be  shown  as  much 
in  the  one  case  as  in  the  other.  Upon  non  est  factum  the  question  is, 
whether  in  law  the  deed  produced  in  evidence  be  the  deed  of  the  party  ? 
so  on  non  assumpsit  the  question  is,  whether  the  bill  given  in  evidence  be 
in  point  of  law  the  bill  accepted  by  the  defendant?  because  the  promise 
only  arises  by  implication  of  law  upon  proof  of  the  acceptance  of  the 
identical  bill  accepted,  and  given  in  evidence.  Now  neither  of  the  counts 
in  the  declaration  was  proved  by  the  facts  found.  For  in  the  first  count 
the  bill  is  dated  the  20th  of  March  ;  but,  as  there  is  no  evidence  of  the 
defendant's  having  accepted  such  a  bill,  of  course  the  plaintiffs  are  not 
entitled  to  recover  on  that  count.  Neither  can  they  recover  on  the  second, 
because  though  it  is  found  that  he  accepted  a  bill  dated  the  26th  of  March, 
as  there  stated,  yet  inasmuch  as  the  bill  stated  to  have  been  produced  in 
evidence  to  the  jury  is  dated  the  20th,  of  course  the  evidence  did  not  sup- 
port the  count.  With  respect  to  the  cases  cited  of  bills  of  exchange  having 
.„„-.  been  always  construed  by  the  most  liberal  *princip]es,  and  particu- 
L  -I  larly  in  the  case  of  Minet  v.  Gibson,  the  same  answer  may  be 
given  to  all  of  them,  which  is,  that  so  far  from  the  original  contracts  having 
been  attempted  to  be  altered,  all  those  actions  were  brought  in  order  to 
enforce  the  observance  of  them  in  their  genuine  meaning  against  the  parly 
who,  in  the  latter  case  particularly,  endeavoured  by  a  trick  to  evade  the 
contract :  whereas  here  the  contract  has  been  substantially  altered  by  the 
parties  who  endeavour  to  enforce  it ;  or  at  least  by  those  whom  they  repre- 
sent, and  from  whom  they  derive  title.     Then  the  case  in  Molloy,  of  Price 


MASTER     V.MILLER.  693 

V.  Shute,  is  chiefly  relied  on  by  the  plaintiffs  ;  to  which  several  answers 
may  be  given.  First,  the  authenticity  of  it  may  be  questioned  ;  for  it  is  not 
to  be  found  in  any  reports,  although  there  are  several  contemporaneous 
reporters  of  that  period.  In  the  next  place,  the  bill,  as  originally  drawn, 
was  not  altered  upon  the  face  of  it ;  and  therefore,  as  against  all  other  per- 
sons at  least  than  the  acceptor,  it  might  still  be  enforced.  But  principally, 
it  does  not  appear  but  that  the  action  was  brought  against  the  drawer,  who,  as 
the  acceptor  had  not  accepted  it  according  to  the  tenor  of  the  bill,  was  clearly 
liable  ;  as  the  payee  was  not  bound  to  abide  by  the  enlarged  acceptance, 
but  might  consider  it  as  no  acceptance  at  all.  Then  if  this  bill  be  void  for 
this  fraud,  no  evidence  could  be  given  to  prove  its  contents,  as  in  the  case 
of  a  deed  lost;  because  in  that  there  is  no  fraud.  But  even  if  any  other 
evidence  might  have  been  given,  it  is  sufficient  to  say  that  in  this  case  there 
was  none.  And  as  to  the  common  counts,  if  the  general  principle  of  law  con- 
tended for  applies  to  bills  of  exchange,  it  will  prevent  the  plaintifTs  from 
recovering  in  any  other  shape.  Besides  which,  it  is  not  stated  that  the 
defendant  has  received  any  other  consideration  ;  upon  which  ground  the 
case  of  Tatlock  v.  Harris  was  decided. 

In  reply  it  was  urged,  that  the  issue  was  not  whether  the  defendant  had 
accepted  this  bill  in  the  state  in  which  it  was  shown  to  the  jury,  but  whether 
he  had  promised  to  pay,  in  consequence  of  having  accepted  a  bill  dated  the 
26th  March,  drawn  by  ?  &c.  ;  and  those  facts  being  found,  the  promise 
necessarily  arises.  It  is  said  that  the  policy  of  the  law  will  extend  the  same 
rule  to  the  avoidance  of  bills  of  exchange  which  have  been  altered,  as  to 
deeds  ;  because  there  is  even  greater  reason  to  guard  against  fraudulent 
alterations  in  the  former  than  in  the  latter  case.  To  which  it  may  ^^jf-y, 
be  answered  that  the  foundation  of  the  rule  fails  in  this  case  ;  for  L  J 
no  fraud  is  found,  and  none  can  be  presumed  :  and  it  is  admitted,  that  if 
the  blot  had  been  made  by  accident,  it  would  not  have  avoided  the  bill; 
and  nothing  is  staled  to  show  that  it  was  not  done  by  accident.  Besides, 
the  policy  of  the  law  is  equally  urgent  in  favour  of  the  plaintifTs,  it  being 
equally  politic  to  compel  a  performance  of  honest  engagements.  Here  the 
defendant  is  only  required  to  do  that  which  in  fact  and  in  law  he  has  pro- 
mised to  do.  And  if  he  be  not  liable  on  this  contract,  he  will  be  protected 
in  withholding  payment  of  that  money  which  he  has  received,  and  which 
by  the  nature  of  his  engagement  he  undertook  to  repay.  No  answer  has 
been  given  to  the  case  cited  from  Molloy  :  for  though  the  case  is  not 
reported  in  any  other  book,  it  bears  every  mark  of  authenticity,  by  noting 
the  names  of  the  parties,  the  court  in  which  it  was  determined,  and  the 
time  of  the  decision  :  and  it  has  been  adopted  by  subsequent  writers  on 
the  same  subject.  Again,  the  alteration  there  was  full  as  important  as 
this,  for  it  equally  tended  to  accelerate  the  day  of  payment;  and,  lastly,  it 
is  not  denied  but  that  the  action  might  have  been  maintained  on  the 
bill  against  any  other  person  than  the  acceptor  ;  which  is  an  admission 
that  the  policy  of  the  law  does  not  attach  so  as  to  avoid  such  instruments 
upon  any  alteration,  for  otherwise  it  would  have  avoided  the  bill  against  all 
parties. 

Lord  ^e/7T/on,  Chief  Justice. — The  question  is  not  whether  or  not  another 
action  may  not  be  framed  to  give  the  plaintiffs  some  remedjs  but  whether 
this  action  can  be  sustained  by  these  parties  on  this  instrument  ? — for  the 


694  smith's   leading  cases. 

instrument  is  the  only  mean  by  which  they  can  derive  a  right  of  action." 
The  right  of  action  which  subsisted  in  favour  of  Wilkinson  and  Cooke, 
could  not  be  transferred  to  the  plaintiffs  in  any  other  mode  than  this, 
inasmuch  as  a  chose  in  action  is  not  assignable  at  law.  No  case,  it  is  true, 
has  been  cited  either  on  one  side  or  the  other,  except  that  in  Molloy,  of 
which  I  shall  take  notice  hereafter,  that  decides  the  question  before  us  in 
the  identical  case  of  a  bill  of  exchange.  But  cases  and  principles  have 
been  cited  at  the  bar,  which,  in  point  of  law  as  well  as  policy,  ought  to  be 
applied  to  this  case.  That  the  alteration  in  this  instrument  would  have 
.  -,  avoided  it,  *if  it  had  been  a  deed,  no  person  can  doubt.  And  why, 
L  J  in  point  of  policy,  would  it  have  had  that  effect  in  a  deed?  Because 
no  man  shall  be  permitted  to  take  the  chance  of  committing  a  fraud,  without 
running  any  risk  of  losing  by  the  event,  when  it  is  detected.  At  the  time 
when  the  cases  cited,  of  deeds,  were  determined,  forgery  was  only  a  mis- 
demeanor:  now  the  punishment  of  the  law  might  well  have  been  consi- 
dered as  too  little,  unless  the  deed  also  were  avoided  ;  and  therefore  the 
penalty  of  committing  such  an  offence  was  compounded  of  those  two  cir- 
cumstances, the  punishment  for  the  misdemeanor,  and  the  avoidance  of  the 
deed.  And  though  the  punishment  has  been  since  increased,  the  principle 
still  remains  the  same.  I  lay  out  of  my  consideration  all  the  cases  where 
the  alteration  was  made  by  accident :  for  here  it  is  stated  that  this  alteration 
Avas  made  while  the  bill  was  in  the  possession  of  Wilkinson  and  Cooke, 
who  were  then  entitled  to  the  amount  of  it ;  and  from  whom  the  plaintifis 
derive  title  :  and  it  was  for  their  advantage  (whether  more  or  less  is  imma- 
terial here)  to  accelerate  the  day  of  payment,  which  in  this  commercial 
country  is  of  the  utmost  importance.  The  cases  cited,  which  were  all  of 
deeds,  were  decisions  which  applied  to  and  embraced  the  simplicity  of  all 
the  transactions  at  that  time  ;  for  at  that  time  almost  all  written  encrao-e- 
ments  were  by  deed  only.  Therefore  those  decisions,  which  were  indeed 
confined  to  deeds,  applied  to  the  then  state  of  affairs:  but  they  establish 
this  principle,  that  all  written  instruments  which  were  altered  or  erased 
should  be  thereby  avoided.  Then  let  us  see  whether  the  policy  of  the  law, 
and  some  later  cases,  do  not  extend  this  doctrine  farther  than  to  the  case  of 
deeds.  It  is  of  the  greatest  importance  that  these  instruments,  which  are 
circulated  throughout  Europe,  should  be  kept  with  the  utmost  purity,  and 
that  the  sanctions  to  preserve  them  from  fraud  should  not  be  lessened.  It 
was  doubted  so  lately  as  in  the  reign  of  George  the  First,  in  Ward's  case, 
2  Str.  747,  and  2  Lord  Ray.  1461,  whether  forgery  could  be  committed  in 
any  instrument  less  than  a  deed,  or  other  instrument  of  a  like  authentic 
nature  ;  and  it  might  equally  have  been  decided  there  that,  as  none  of  the 
preceding  determinations  extended  to  that  case,  the  policy  of  the  law  should 
not  be  extended  to  it.  But  it  was  there  held  that  the  principle  extended  to 
r*4fiQi  °''^*^^  instruments  as  well  as  to  deeds;  and  that  *the  law  went  as 
L  J  far  as  the  policy.  It  is  on  the  same  reasoning  that  I  have  formed 
my  opinion  in  the  present  case.  The  case  cited  from  Molloy  indeed,  at 
first  made  a  different  impression  on  my  mind  :  but  on  looking  over  it  with 
great  attention,  I  think  it  is  not  applicable  to  this  case.  No  alteration  was 
there  made  on  the  bill  itself;  but  the  party  to  whom  it  was  directed, 
accepted  it  as  payable  at  a  difltrent  time,  and  afterwards  the  payee  struck 
out  the  enlarged  acceptance;  and, on  the  acceptor  refusing  to  pay,  it  is  said 


MASTER    V.     MILLER.  695 

that  an  action  was  maintained  on  the  bill.  But  it  does  not  say  against 
whom  the  action  was  brought;  and  it  could  not  have  been  brought  against 
the  acceptor,  whose  acceptance  was  struck  out  by  the  party  himself  who 
brought  the  action.  Taking  that  case  in  the  words  of  it,  "  that  the  altera- 
tions did  not  destroy  the  bill,"  it  does  not  affect  this  case  ;  not  an  iota  of  the 
bill  itself  was  altered  ;  but  on  the  pjerson  to  whom  the  bill  was  directed 
refusing  to  accept  the  bill  as  it  was  originally  drawn,  the  holder  resorted  to 
the  drawer.  Then  it  was  contended  that  no  fraud  was  intended  in  this 
case  ;  at  least,  that  none  is  found  :  but  I  think  that,  if  it  had  been  done 
by  accident,  that  should  have  been  found,  to  excuse  the  party,  as  in  one  of 
the  cases  where  the  seal  of  the  deed  was  torn  off  by  an  infant.  With 
respect  to  the  argument  drawn  from  the  form  of  the  plea,  it  goes  the  length 
of  saying,  that  a  defendant  is  liable,  on  non  assumpsit,  if  at  any  time  he 
has  made  a  promise,  notwithstanding  a  subsequent  payment :  but  the  ques- 
tion is,  whether  or  not  the  defendant  promised  in  the  form  stated  in  the 
declaration?  and  the  substance  of  that  plea  is,  that  according  to  that  form 
he  is  not  bound  by  law  to  pay.  On  the  whole,  therefore,  I  am  of  opinion 
that  this  falsification  of  the  instrument  has  avoided  it;  and  that,  whatever 
other  remedy  the  plaintiffs  may  have,  they  cannot  recover  on  this  bill  of 
exchange. 

Ashhurst,  J. — It  seems  admitted  that,  if  this  had  been  a  deed,  the  altera- 
tion would  have  vitiated  it.  Now  I  cannot  see  any  reason  why  the  prin- 
ciple on  which  a  deed  would  have  been  avoided  should  not  extend  to  the 
case  of  a  bill  of  exchange.  All  written  contracts,  whether  by  deed  or  not, 
are  intended  to  be  standing  evidence  against  the  parties  entering  into  them. 
There  is  no  magic  in  parchment  or  in  wax ;  and  a  bill  of  exchange,  though 
not  a  deed,  is  *evidence  of  a  contract  as  much  as  a  deed  ;  and  the  p*^«/^-i 
principle  to  be  extracted  from  the  cases  cited  is,  that  any  alteration  L  -' 
avoids  the  contract.  If  indeed  the  plaintiffs,  who  are  innocent  holders  of 
this  bill,  have  been  defrauded  of  their  money,  they  may  recover  it  back  in 
another  form  of  action:  but  I  think  they  cannot  recover  upon  this  instru- 
ment, which  I  consider  to  be  a  nullity.  It  is  found  by  the  verdict  that  the 
alteration  was  made  while  the  bill  was  in  possession  of  Wilkinson  and 
Cooke  ;  and  it  certainly  was  for  their  advantage,  because  it  accelerated  the 
day  of  payment.  Now,  upon  these  facts,  the  jury  would  perhaps  have 
been  warranted  in  finding  that  the  alteration  was  made  by  them:  at  all 
events,  it  was  their  business  to  preserve  the  bill  without  any  alteration.  If 
Wilkinson  and  Cooke  had  brought  this  action,  they  clearly  could  not  have 
recovered,  because  they  must  suffer  for  any  alteration  of  the  bill  while  it 
was  in  their  custody  ;  then,  if  the  objection  would  have  prevailed  in  an 
action  brought  by  them,  it  must  also  hold  with  regard  to  the  plaintiffs,  who 
derive  title  under  them.  For  wherever  a  party  takes  a  bill  under  such 
suspicious  circumstances  appearing  on  the  face  of  it,  it  is  his  duty  to 
inquire  how  the  alteration  was  made  ;  he  takes  it  at  his  risk,  and  must 
take  it  subject  to  the  same  objection  as  lay  against  the  party  from  whom  he 
received  it.  Upon  the  whole,  there  seems  to  be  no  difference  between 
deeds  and  bills  of  exchange  in  this  respect  in  favour  of  the  latter  :  but,  on 
the  contrary,  if  there  be  any  difference,  the  objection  ought  to  prevail  with 
greater  force  in  the  latter  tlian  in  the  former;  for  it  is  more  particularly 
necessary  that  bills  of  exchange,  which  are  daily  circulated  from  hand  to 


696  smith's     LEADING    CASES. 

hand,  should  be  preserved  Avitli  greater  purity  than  deeds,  which  do  not 
pass  in  circulation.  It  would  be  extremely  dangerous  to  permit  the  party 
to  recover  on  a  bill  as  it  was  originally  drawn,  after  an  attempt  to  commit  a 
fraud,  by  accelerating  the  time  of  payment.  For  these  reasons,  therefore, 
I  concur  in  opinion  with  my  lord. 

Biiller,  Justice. — In  a  case  circumstanced  as  the  present  is,  in  which  it 
is  apparent,  as  found,  and  has  been  proved  beyond  all  doubt,  that  the  bill  of 
exchange  in  question  was  given  for  a  full  and  valuable  consideration,  that 
the  plaintiffs  are  honest  and  innocent  holders  of  it,  and  that  the  defendant 
^  -,  has  the  amount  of  the  bill  in  his  hands,  it  is  astonishing  to  *me 
L  -'  that  a  jury  of  merchants  should  hesitate  a  moment  in  finding  a  ver- 
dict generally  for  the  plaintiffs,  more  especially  as  I  understand  it  was  left 
to  them  by  the  Chief  Justice  to  read  the  bill  as  it  undoubtedly  was  drawn, 
and  by  that  means  to  put  an  end  to  the  question  at  once.  It  was  rightly  so 
left  to  the  jury  by  his  lordship  ;  for  that  was  the  furtherance  of  the  justice 
of  the  case,  and  it  tended  to  prevent  expense,  litigation,  and  delay,  which 
are  death  to  trade.  That  the  defendant  cannot  be  suffered  to  pocket  the 
money  for  which  this  bill  was  drawn,  or  to  enable  the  drawer  to  do  so,  but 
that  sooner  or  later,  provided  a  bankruptcy  do  not  intervene,  it  must  be  paid 
I  presume  no  man  will  doubt.  The  drawer  has  received  the  value,  the 
plaintiffs  have  paid  it,  and  the  defendant  has  it  in  his  hands.  On  this  short 
statement,  every  one  who  hears  me  must  anticipate  me  in  saying  that  the 
defendant  must  pay  it.  Nay,  if  actual  forgery  had  been  committed,  the 
defendant  could  not  be  permitted  to  retain  the  money  ;  he  must  not  get 
900/.  by  the  crime  of  another ;  but  in  such  a  case,  I  agree  it  would  be  dif- 
ficult to  sustain  the  present  or  any  action  for  the  money  till  something  fur- 
ther had  happened  than  has  yet  been  done.  The  law  proceeding  on  prin- 
ciples of  public  policy,  has  wisely  said — That  where  a  case  amounts  to 
felony,  you  shall  not  recover  against  the  felon  in  a  civil  action  ;  but  that 
rule  does  not  appear  by  any  printed  authority  to  have  been  extended  beyond 
actions  of  trespass  or  tort,  in  which  it  is  said  that  the  trespass  is  merged  in 
the  felony.  That  is  a  rule  of  law  calculated  to  bring  offenders  to  justice. 
But  whether  that  rule  extends  to  any  case  after  the  offender  is  brought  to 
justice,  or  whether  at  any  time  it  may  be  resorted  to  in  an  action  between 
persons  guilty  of  no  crime,  are  questions  upon  which  I  have  formed  no 
opinion,  because  this  case  does  not  require  it.  Upon  this  special  verdict, 
there  is  no  foundation  for  saying  that  any  one  has  been  guilty  of  forgery, 
nor  even  of  a  fraud  as  it  strikes  my  mind.  Fraud  or  felony  is  not  to  be 
presumed;  and,  unless  it  be  found  by  the  jury,  the  court  cannot  imply  it. 
Minet  v.  Gibson  is  a  most  decisive  authority  for  that  proposition,  if  any  be 
wanted  ;  and  I  do  not  think  there  is  any  foundation  for  the  distinction 
attempted  to  be  taken  between  that  case  and  the  present.  It  has  been  con- 
tended that  the  party  there  recovered,  because  the  nature  of  the  obliga- 
r*472"l  ^'^"^  *was  not  altered  ;  but  the  determination  did  not  proceed  entire- 
L  -^  ly  on  that  ground,  but  on  this,  that,  according  to  the  true  intent  and 
meaning  of  the  parties,  the  bill  was  intended  to  be  made  payable  to  the 
bearer  ;  so  here  the  plaintiffs  do  not  attempt  to  enforce  the  contract  contrary 
to  the  terms  of  it,  but  according  to  that  form  by  which  the  defendant  origi- 
nally consented  to  be  bound,  as  staled  in  the  second  count.  The  special 
verdict  finds  that  Peel  &  Co.,  on  the  26th  of  March,  1788,  drew  a  bill  of 


MASTER    V.    MILLER.  697 

exchange  on  the  defendant  for  947/.  10s.,  payable  to  Wilkinson  and  Co.  ; 
which  bill  as  the  same  has  been  altered,  accepted,  and  written  upon,  is  set 
out  in  hcec  verba.  Upon  the  fac-simile  copy  of  a  bill  set  out  in  the  verdict, 
there  appears  to  be  a  blot  over  the  date  ;  and  the  jury  have  thought  fit  to 
read  it  as  it  now  stands,  the  20th.  I  must  confess  I  should  never  have 
read  it  so ;  for  seeing  that  there  was  something  above  the  figure  0,  that  is 
the  last  reading  which  I  should  have  given  it.  I  should  have  said  on  the 
face  of  the  bill,  this  must  have  been  either  a  6  or  an  8  ;  it  could  not  have 
been  8,  because  the  0,  is  as  high  as  the  2,  and  therefore  it  must  be  a  6 ;  but 
the  jury  have  found  no  difficulty  in  saying  it  was  a  6 ;  and  I  will  examine 
presently  whether  there  be  any  objection  to  let  it  remain  as  a  6.  The  ver- 
dict further  finds  that  the  defendant,  before  any  alteration  of  the  bill, 
accepted  it ;  and  Wilkinson  and  Co.  endorsed  it  to  the  plaintiffs,  who  paid 
a  valuable  consideration  for  it.  Then  it  is  stated,  that  whilst  the  bill 
was  in  the  hands  of  Wilkinson  and  Cooke,  the  date,  without  the  autho- 
rity of  the  defendant,  was  altered  by  persons  unknown,  from  the  26th 
to  the  20th  of  March.  They  further  find  that  the  words  "  23rd  of 
June,"  were  inserted  at  the  top  of  the  bill,  to  mark  that  the  bill  would 
then  become  due  ;  and  that  the  alteration  and  the  blot  were  on  the  bill 
when  it  was  delivered  to  the  plaintiffs.  This  is  the  full  substance  of 
the  special  verdict,  and  there  is  neither  forgery,  felony,  nor  fraud,  found 
or  supposed  by  the  jury  ;  we  therefore  neither  intend  nor  infer  it.  The  ver- 
dict amounts  only  to  saying  there  is  a  blot  on  the  bill,  but  how  it  came  there 
we  don't  know  ;  and  we  beg  to  ask  the  court  whether  the  circumstances  of 
a  blot  being  on  the  bill,  which  we  cannot  account  for,  makes  the  bill  void.  Pro- 
vided I  have  accurately  stated  the  question,  surely  such  a  verdict  is  without 
precedent.  Suppose  a  child  had  torn  out  a  bit  of  *the  bill  on  which  r#^«q-] 
the  top  of  the  6  was  written,  is  the  holder  of  the  bill  to  lose  974/.  ?  L  -' 
or  is  the  defendant  to  get  974/.  by  such  an  accident  ?  But  to  decide  whe- 
ther I  have  accurately  stated  the  question  in  the  cause,  it  is  necessary  to 
examine  the  words  of  the  special  verdict  minutely,  and  by  degrees.  The 
jury  have  said  that  the  bill  was  altered  The  word  "  altered"  may  raise  a 
suspicion  and  alarm  in  our  minds  ;  but  let  not  our  judgment  be  run  away 
with  by  a  word,  without  examining  the  true  sense  and  meaning  of  it  as  it  is 
used  in  the  place  where  we  find  it.  How  was  it  altered,  what  is  the  altera- 
tion, when  was  it  made,  and  for  what  purpose  ?  The  jury  have  said  it  was 
altered  by  putting  a  blot  over  the  date :  but  by  whom  or  when  that  was 
done  we  don't  know,  further  than  that  it  was  done  whilst  the  bill  was  in  the 
possession  of  Wilkinson  and  Cooke;  but  we  do  not  find  that  it  was  done 
for  any  bad  purpose,  or  with  any  improper  view  whatever.  Upon  this  find- 
ing, the  court  are  bound  to  say  it  was  done  innocently.  But  the  jury  have 
also  said,  that  "  June  23rd"  was  inserted  at  the  top  of  the  bill  to  mark  when 
the  bill  would  become  due.  When  and  by  whom  was  that  done?  The 
jury  have  not  said  one  word  upon  the  subject.  Was  that  done  even  during 
any  part  of  the  time  whilst  the  bill  was  in  the  possession  of  Wilkinson  and 
Cooke  ?  No.  It  is  consistent  with  the  finding,  that  the  plaintifl^s,  who  are 
found  to  be  bona  fide  holders  of  the  bill,  upon  reading  the  date  to  be  the 
20th,  and  calculating  the  time  which  it  had  to  run  from  that  date,  put  down 
"June  23rd  with  the  most  perfect  innocence.  If  the  bill  had  been  origin- 
ally dated  on  the  20th,  the  23rd  June  would  have  been  the  true  lime  of  pay- 


698  smith's  leading  cases. 

ment.  But  admitting  that  a  wrong  date  had  been  put  down,  as  denoting 
the  time  of  payment,  is  there  any  case  or  authority  wliich  says  that  that  cir- 
cumstance shall  render  the  bill  void  ?  Every  bill  which  has  been  negotiat- 
ed within  the  memory  of  man  is  marked  by  some  holder  or  another  with  the 
•day  when  it  will  become  or  is  supposed  to  become  due.  That  in  some 
sense  of  the  word  is  an  alteration  ;  for  it  makes  an  addition  to  the  bill  which 
was  not  there  when  it  was  drawn  or  accepted.  But  was  it  done  fraudu- 
lently? The  answer  is — It  was  not,  and  therefore  it  is  of  no  avail.  So 
here  the  jury  have  not  said  it  was  done  fraudulently,  and  therefore  it  affords 
j.^  -,  no  objection.  When  the  jury  have  *stated  what  the  alteration  is, 
L  -'  and  how  it  was  made,  namely,  by  making  a  blot,  and  having  fixed 
no  sinister  or  improper  motive  for  so  doing,  it  is  the  same  as  if  they  had 
said  only  "  here  is  a  blot  on  the  bill."  Suppose  the  jury  had  said  in  a  few 
words  that  this  bill  was  drawn,  indorsed  and  accepted,  by  the  defendant,  as 
the  plaintiffs  allege,  but  here  is  a  blot  upon  it  which  makes  the  date  look 
like  the  20th  instead  of  the  26th.  The  true  answer  would  have  been — 
Blot  out  the  blot  by  your  own  understanding  and  conviction,  and  pronounce 
your  verdict  according  to  the  truth  of  the  case.  It  was  nobly  said  in  ano- 
ther place,  (I  heard  it  with  pleasure,  and  thought  it  becoming  the  dignity 
of  the  person  who  pronounced  it,  and  the  place  in  which  it  was  pronounced,) 
"That  the  law  is  best  applied  when  it  is  subservient  to  the  honesty  of  the 
case.  And  if  there  be  any  rule  of  law  which  says  you  cannot  recover  on 
any  instrument  but  according  to  the  terms  of  it,  forlorn  would  be  the  case 
of  plaintiffs.  By  the  temperate  rules  of  law  we  must  square  our  conduct." 
The  honesty  of  the  plaintiffs'  case  has  been  questioned  by  no  one  ;  and 
therefore  I  should  imagine  the  wishes  of  us  all  would  have  been  in  favour 
of  their  claim,  provided  we  are  not  bound  down  by  some  stubborn  rule  of 
law  to  decide  against  them.  Here  again  I  must  beg  leave  to  resort  to  what 
was  forcibly  said  in  another  place,  upon  a  similar  subject,  and  which  I  shall 
do  as  nearly  in  the  words  which  passed  at  the  time  as  I  can;  because  they 
carried  conviction  to  my  mind;  because  they  contain  my  exact  senti- 
ments ;  and  because  they  are  more  emphatical  than  any  which  I  could  sub- 
stitute in  the  place  of  them.  "The  question  (it  was  said)  is,  whether  there 
be  any  rule  of  law  so  reluctant  that  it  will  not  recede  from  words  to  enforce 
the  intention  of  the  parties.  I  believe  there  is  no  such  rule.  For  half  of  a 
century  there  have  been  various  cases  which  have  left  the  question  of  for- 
gery untouched.  If  a  bill  be  forged,  the  acceptor  is  bound."  Speaking  of 
the  case  of  Stone  v.  Frceland,  it  was  said,  "  if  any  one  say  that  case  is  not 
law,  let  him  show  why  it  is  not  so.  Judges  can  only  look  to  former  deci- 
sions. This  has  been  a  rule  in  the  commercial  world  above  twenty  years." 
This  reasoning  seems  to  me  to  be  sound  and  decisive,  if  it  apply  to  the  pre- 
sent case  :  and  to  prove  that  it  does  apply,  I  need  only  quote  the  case,  men- 
r*475~l  ^^'^"^'^  ^^  ^^^  ^^^'  °^  Price  v.  Shute,  reported  in  Beawes's  Lex 
L  J  *Mercat.,  title  Bill  of  Excliange,  p.  222,  and  Moll.  109.  There  a 
bill  was  payable  1st  January,  and  the  person  to  whom  it  was  directed  ac- 
cepted it  to  pay  on  the  1st  of  May,  with  which  the  servant  returned  to  his 
his  master,  who,  perceiving  this  enlarged  acceptance,  struck  out  the  1st  of 
March  and  put  in  the  1st  of  January,  and  at  that  time  sent  the  bill  for  pay- 
ment, which  the  acceptor  refused  ;  whereupon  the  possessor  struck  out  the 
1st  of  January  and  inserted  the  1st  of  March  again.     In  an  action  brought 


MASTER     V.     MILLER.  699 

on  this  bill,  the  question  was,  whether  these  alterations  did  not  destroy  the 
bill ;  and  ruled  by  Lord  Chief  Justice  Pemberlon,  that  they  did  not.  Now, 
on  reading-  this  case,  I  cannot  consider  it  in  any  other  light  than  as  aa 
action  brought  against  the  acceptor  ;  for  it  only  states  what  passed  between 
those  parties.  Here  then  is  a  rule  which  has  prevailed  in  the  commer- 
cial world  for  110  years:  it  stands  uncontradicted  and  unimpeached  :  it 
was  decided  by  great  authority  ;  and,  as  I  take  it,  on  deliberation.  For 
when  it  is  said  to  have  been  in  B.  R,,  that  must  either  have  been  in  this 
court,  or  on  a  case  saved  by  Chief  Justice  Pemberton  for  his  own  opinion  ; 
Avhich  was  a  common  way  of  proceeding  in  those  days.  In  that  case  the 
term  "  alteration"  is  used,  and  therefore  we  need  not  be  frightened  or 
alarmed  at  that  word.  The  effect  of  the  alteration  was  to  accelerate  the 
payment  ;  so  it  is  here.  But  in  one  respect  that  case  goes  beyond  the 
present;  for  there  the  alteration  was  made  by  the  plaintiff  himself; 
here  it  was  not.  It  was  true,  in  that  case,  when  the  plaintiff  found  he 
could  not  receive  the  money  on  the  1st  of  January,  he  altered  it  back  to 
the  1st  of  March  ;  but  if  the  first  alteration  vitiated  the  bill,  no  subsequent 
alteration  could  set  it  up  against  the  acceptor  without  his  consent.  Here 
the  plaintiffs  have  not  re-altered  the  bill;  but  they  have  acted  a  more  honest 
part ;  they  have  left  the  bill  as  it  was  to  speak  for  itself;  but  they  have  treat- 
ed it  as  a  bill  of  the  26th  of  March  ;  they  have  proved  that  it  was  a  bill  of 
the  26th  of  March;  they  demanded  payment  according  to  that  date;  and 
the  jury  have  found  all  these  facts  to  be  true.  And  it  is  material  to  con- 
sider what  was  the  issue  joined  between  the  parties;  for  there  is  a  great 
deal  of  difference  between  the  plea  of  non  est  factum  and  the  present:  here 
the  question  is,  whether  the  drawer  made  such  a  bill,  and  whether  the 
defendant  accepted  it ;  and  this  is  found  by  the  jury.  Then  *the  p^.«,^-, 
case  of  Price  v.  Shute,  in  sense  and  substance,  is  a  direct  authority  L  J 
in  point  with  the  present;  though  it  vary  in  a  minute  and  immaterial  cir- 
cumstance. The  plaintiffs  in  treating  the  bill,  and  making  a  demand  as 
they  have  done,  seem  to  have  followed  the  sober  advice  and  directions 
given  by  Beawes  in  pi.  190;  where  he  says,  "he  that  is  possessor  of  a  bill 
which  only  says  'pay,'  without  mentioning  the  time  when,  or  that  is  with- 
out a  date,  or  not  clearly  and  legibly  written,  payable  some  time  after  date, 
&c.,  so  that  the  certain  precise  time  of  payment  cannot  be  calculated  or 
known,  must  be  very  circumspect,  and  demand  the  money  whenever  there 
is  any  probable  appearance  of  the  time  being  completed  that  was  intended 
for  its  payment;  or  that  he  can  demonstrate  any  circumstance  that  may 
determine  it,  or  make  it  likely  when  it  shall  be  paid."  It  is  impossible 
that  this  writer  could  have  supposed  that  the  bill  was  rendered  void  by  any 
blot,  obliteration,  or  erasure :  on  the  contrary,  he  tells  you  that  it  must  be 
demanded  in  time,  and  that  you  may  make  out  by  circumstances  or  other 
evidence  when  it  was,  or  was  likely  to  be,  payable.  That  has  been  made 
out  by  evidence  in  the  present  case.  Upon  this  head  I  shall  only  add  one 
authority  more,  which  is  Carth.  460,  where  a  bill  was  accepted  after  a  day 
of  payment  was  elapsed.  It  was  objected  that  it  was  impossible  in  such  a 
case  for  the  defendant  to  pay  according  to  the  tenor  of  the  bill,  and  there- 
fore the  declaration  was  bad  ;  but  the  court  held  it  good,  and  said  the  effect 
of  the  bill  was  the  payment  of  the  money,  and  not  the  day  of  payment.  So 
here  the  defendant  having  accepted  this  bill,  whatever  may  be  the  construe- 


700  smith's  leading   cases. 

tion  as  to  the  date,  must  pay  the  money.  [  hold  that  in  this  case  there  is 
no  fraud  either  express  or  implied  ;  and  that  as  the  plaintiffs  have  proved 
that  they  gave  a  valuable  consideration  for  the  bill,  and  that  it  was  indorsed 
to  them  by  those  through  whose  hands  it  passed,  their  case  is  open  to  no 
objection  whatever.  But  I  will  suppose  for  a  moment,  though  the  case  do 
not  warrant  it,  that  Wilkinson  and  Cooke  did  mean  a  fraud ;  still  I  am  of 
opinion  that  would  not  affect  the  case  between  the  plaintiffs  and  the  defen- 
dant. It  is  a  common  saying  in  our  law  books,  that  fraud  vitiates  every 
thing.  I  do  not  quarrel  with  the  phrase,  or  mean  in  the  smallest  degree  to 
impeach  the  various  cases  which  have  been  founded  on  the  proof  of  fraud. 
p,  .-^-1  But  still  we  must  *recollect  that  the  principle  which  I  have  raen- 
L  -^  tioned  is  always  applied  ad  hominem.  He  who  is  guilty  of  a  fraud 
shall  never  be  permitted  to  avail  himself  of  it;  and  if  a  contract  founded  in 
fraud  be  questioned  between  the  parties  to  that  contract,  I  agree,  that,  as 
against  the  person  who  has  committed  the  fraud,  and  who  endeavours  to 
avail  himself  of  it,  the  contract  shall  be  considered  as  null  and  void.  But 
there  is  no  case  in  which  a  fraud  intended  by  one  man  shall  overturn  a  fair 
and  bona  fide  contract  between  two  others."  Even  as  between  the  parties 
themselves  we  must  not  forget  the  figurative  language  of  Lord  Chief  Justice 
Wilmot,  who  said  that  "the  statute  law  is  like  a  tyrant ;  where  he  comes, 
he  makes  all  void  ;  but  the  common  law  is  like  a  nursing  father,  and  makes 
void  only  that  part  where  the  fault  is,  and  preserves  the  rest."  2  Wils. 
351.  If  an  alteration  be  made  to  effect  a  fraud,  the  alteration  shall  be  laid 
out  of  the  question  ;  but  still  the  contract  shall  exist  to  its  original  and  hon- 
est purpose,  and  shall  be  carried  into  execution  as  if  the  fraud  had  never 
existed.  A  case  somewhat  similar  to  this  is  to  be  found  in  the  book  which 
I  have  before  quoted,  and  which  though  not  a  binding  legal  authority,  yet, 
where  its  propositions  are  founded  on  practice  and  good  sense,  is  deserving 
of  some  attention.  Beawes,  tit.  Bill  of  Exchange,  pi.  135,  says,  "where 
the  possessor  of  a  bill  payable  to  his  order  fails,  and  to  defraud  his  creditors 
indorses  it  to  another,  who  negotiates  it,  and  effectually  receives  the  value, 
indorsing  it  again  to  a  third,  &c.,  and  though  the  creditors,  having  dis- 
covered the  fraud,  oppose  it,  j'^et  the  acceptant  must  pay  it  to  him  who 
comes  to  receive  it,  on  proof  that  he  paid  the  real  value  for  it."  But  it  has 
been  contended  that  there  is  an  analogy  between  bills  of  exchange  and. 
deeds,  and  that  in  the  case  of  deeds  any  erasue  or  alteration  will  avoid 
the  deed.  In  answer  to  this,  first,  I  deny  the  analogy  between  bills  of 
exchange  and  deeds,  and  there  is  no  authority  to  support  it.  In  the  case  of 
deeds,  there  must  be  a  profert,  and,  as  we  learn  from  10  Co.  92  b,  in  ancient 
times  the  judges  pronounced  upon  view  of  the  deed,  though  Lord  Coke 
says  that  practice  was  afterwards  altered.  But  there  never  is  a  profert  of 
a  bill  of  exchange  ;  the  judges  cannot  determine  on  a  view  of  that,  but  it 
must  be  left  to  a  jury  to  decide  upon  the  whole  of  the  evidence,  according 
r*47Rl  to  the  truth  of  the  case.  Again,  in  the  *case  of  joint  and  several 
L  -J  bonds  the  objection  was  founded  on  its  being  a  substantial  injury  to 
the  defendant ;  for  if  it  were  considered  as  a  sole  bond,  the  defendant  would 
be  answerable  for  the  whole  debt ;  but  if  it  were  a  joint  bond,  he  would  be 
liable  to  only  half  or  other  proportionable  part  of  it.  So  far  in  those  days 
did  the  court  look  into  the  equity  of  the  case.  But  the  blot  on  this  bill  is 
no  injury  to  the  defendant ;  he  is  not  liable  to  pay  till  the  bill  became  due, 


MASTER    V.     MILLER.  701 

computing  the  time  from  the  original  date  ;  then  be  must  pay  it :  he  alone 
is  liable  ;  and  he  never  can  be  charged  a  second  time  on  a  bill.  Secondly, 
it  is  not  universally  true  that  a  deed  is  destroyed  by  an  alteration,  or  by 
tearing  off"  the  seal.  In  Palm.  403,  a  deed  which  had  erasures  in  it  and 
from  which  the  seal  was  torn,  was  held  good  ;  it  appearing  that  the  seal  was 
torn  off' by  a  little  boy.  So  in  any  case  where  the  seal  is  torn  off"  by  accident 
after  plea  pleaded,  as  appears  by  the  cases  quoted  by  the  plainlifl^s'  counsel. 
And  in  these  days,  I  think  even  if  the  seal  were  torn  off  before  the  action 
brought,  there  would  be  no  difficulty  in  framing  a  declaration,  which  would 
odviate  every  doubt  upon  that  point,  by  stating  the  truth  of  the  case.  The 
difficulty  which  arose  in  the  old  cases  depended  very  much  on  the  tech- 
nical forms  of  pleading  applicable  to  deeds  alone.  The  plaintiff"  made  a 
profcrt  of  the  deed  under  seal,  which  he  still  must  do,  unless  he  can  allege 
a  sufficient  ground  for  excusing  it  ;  when  that  is  done,  the  deed  or  the  pro- 
fert  must  agree  with  that  stated  in  the  declaration,  or  the  plaintiff' fails.  But 
a  profert  of  a  deed  without  a  seal  will  not  support  the  allegation  of  a  deed 
with  a  seal.  For  these  reasons  I  am  of  opinion  that  the  plaintiffs  are 
entitled  to  judgment  on  the  second  count,  which  is  drawn  upon  the  bill, 
stating  it  to  bear  date  the  26lh  March. 

But  supposing  there  could  be  any  doubt  on  his  part  of  the  case,  I  am 
also  of  opinion  that  the  plaintiffs  are  entitled  to  their  judgment  on  either  of 
the  two  counts  for  money  paid,  or  for  money  had  and  received.  Here  it  is 
material  to  recal  to  our  minds  the  facts  found  by  the  verdict.  The  bill  pro- 
duced to  the  jury  was  drawn  for  value,  and  was  accepted  by  the  defendant. 
He  is  not  found  to  have  no  effects  of  the  drawer's  in  his  hands  ;  and  his 
accepting  the  bill  imports,  and  is  at  the  least  prima  facie  evidence,  that  he 
had  ;  and  on  this  verdict  he  must  be  taken  *to  have  the  amount  in  r^^^q-i 
his  hands.  In  Burr.  1675,  Aston,  Justice,  said,  it  is  an  admission  l  J 
of  efl^ects.  By  his  acceptance  he  gave  faith  to  the  bill ;  and  the  plaintifl^s, 
giving  credit  to  that  fact,  have  actually  paid  the  value  of  the  bill  on  receiv- 
ing it.  On  this  case  the  money  paid  by  the  plaintiff^  is  money  paid  for 
the  use  of  the  defendant  ;  for  the  money  was  advanced  on  the  credit  of  the 
defendant,  and  in  consequence  of  his  undertaking  to  pay  the  bill.  Again, 
the  money  in  the  defendant's  hands  is  so  much  money  received  by  him  for 
the  use  of  the  plaintiffs,  who  were  holders  of  the  bill  when  it  became  due. 
The  defendant  has  got  that  money  in  his  pocket,  which  in  justice  and  con- 
science the  plaintiffs  ought  to  have,  and  therefore  they  are  entitled  to  recover 
it  in  an  action  for  money  had  and  received. 

In  answer  to  this,  it  was  in  the  last  term  suggested  for  consideration, 
whether  this  bill  after  the  alteration  were  not  a  chose  in  action,  which  could 
not  be  assigned  ?  It  is  laid  down  in  our  old  books,  that  for  avoiding  main- 
tenance a  chose  in  action  cannot  be  assigned  or  granted  over  to  another. 
Co.  Lit.  214  a,  266  a;  2  Roll.  45, 1.  40.  The  good  sense  of  that  rule  seems 
to  me  to  be  very  questionable  ;  and  in  early  as  well  as  modern  times  it  has 
been  so  explained  away,  that  it  remains  at  most  only  an  objection  to  the 
form  of  the  action  in  any  case.  In  2  Roll.  Abr.  45  &  46,  it  is  admitted  that 
an  obligation  or  other  deed  may  be  granted,  so  that  the  writing  passes  ;  but 
it  is  said  that  the  grantee  cannot  sue  for  it  in  his  own  naiTie.  If  a  third 
person  be  permitted  to  acquire  the  interest  in  a  thing,  whether  he  is  to 
bring  the  action  in  his  own  name,  or  in  the  name  of  the  grantor,  does  not 


702  smith's   leading    cases. 

seem  to  me  to  affect  the  question  of  maintenance.  It  is  curious,  and  not 
altogether  useless,  to  see  how  the  doctrine  of  maintenance  has  from  time  to 
time  been  received  in  Westminster-hall.  At  one  time,  not  only  he  who 
laid  out  money  to  assist  another  in  his  cause,  but  he  that  by  his  friendship 
or  interest  saved  him  an  expense  which  he  would  otherwise  have  been  put 
to,  was  held  guilty  of  maintenance.  Bro.  tit.  Maintenance,  7.  14.  17,  &c. 
Nay,  if  he  officiously  gave  evidence,  it  was  maintenance  ;  so  that  he  must 
have  had  a  subpoena,  or  suppress  the  truth.  That  such  doctrine,  repugnant 
to  every  honest  feeling  of  the  human  heart,  should  be  soon  laid  aside  must 
r*^^^  ^^  expected.  Accordingly  a  variety  of  *exceptions  were  soon  made  ; 
L  -■  and,  amongst  others,  it  was  held,  that  if  a  person  has  any  interest 
in  the  thing  in  dispute,  though  on  contingency  only,  he  may  lawfully  main- 
tain an  action  on  it.  2  Roll.  Abr.  115  ;  but  in  the  midst  of  all  these  doc- 
trines on  maintenance,  there  was  one  case  in  which  the  courts  of  law  allowed 
of  an  assignment  of  a  chose  in  action,  and  that  was  in  the  case  of  the 
crown  ;  for  the  courts  did  not  feel  themselves  bold  enough  to  tie  up  the 
property  of  the  crown,  or  to  prevent  that  from  being  transferred.  3  Leon. 
198  ;  2  Cro.  180.  Courts  of  equity  from  the  earliest  times  thought  the 
doctrine  too  absurd  for  them  to  adopt,  and  therefore  they  always  acted  in 
direct  contradiction  to  it  ;  and  we  shall  soon  see  that  courts  of  law  also 
altered  their  language  on  the  subject  very  much.  In  12  Mod.  554,  the 
court  speaks  of  an  assignment  of  an  apprentice,  or  an  assignment  of  a  bond, 
as  things  which  are  good  between  the  parties,  and  to  which  they  must  give 
their  sanction  and  act  upon.  So  an  assignment  of  a  cAose  in  action  has 
always  been  held  a  good  consideration  for  a  promise.  It  was  so  in  1  Roll.  Ab. 
29  ;  Sid.  212,  and  T.  Jones,  222  ;  and  lastly,  by  all  the  judges  of  England 
in  Mouldsdale  v.  Birchall,  2  Black.  820,  though  the  debt  assigned  was 
uncertain.  After  these  cases,  we  may  venture  to  say  that  the  maxim  was 
a  bad  one,  and  that  it  proceeded  on  a  foundation  which  fails.  But  still  it 
must  be  admitted,  that  though  the  courts  of  law  have  gone  the  length  of 
taking  notice  of  assignments  of  choses  in  action  and  of  acting  upon  them, 
yet  in  many  cases  they  have  adhered  to  the  formal  objection,  that  the  action 
shall  be  brought  in  the  name  of  the  assignor,  and  not  in  the  name  of  the 
assignee.  I  see  no  use  or  convenience  in  preserving  the  shadow  when  the 
substance  is  gone  ;  and  that  it  is  merely  a  shadow,  is  apparent  from  the 
later  cases,  in  which  the  court  have  taken  care  that  it  shall  never  work 
injustice.  In  Bottomley  v.  Brooke,  C.  B.  Mich.  22,  G.  3,  1  T.  R.  621, 
which  was  debt  on  bond,  the  defendant  pleaded  that  the  bond  was  given 
for  securing  103/.  lent  to  the  defendant  by  E.  Chancellor  ;  and  was  given 
by  her  direction  in  trust  for  her,  and  that  E.  Chancellor  was  indebted  to  the 
defendant  in  more  money.  To  this  plea  there  was  a  demurrer,  which  was 
withdrawn  by  the  advice  of  the  court.  In  Rudge  v.  Birch,t  K.  B.  Mich. 
25  G.  3,  1  T.  R.  622,  on  the  same  pleadings  there  was  judgment  for  the 
r*48n  ^^^'^"^^"t-  ^^^  in  Winch  v.  Keely,  K.  B.  Hil.  27  *Geo.  3,  ante, 
L  J  vol.  i.  619,  where  the  obligee  assigned  over  a  bond  and  aferwards 
became  a  bankrupt,  the  court  held  that  he  might  notwithstanding  maintain 
the  action.    Mr.  J.  Ashurst  said,  "  It  is  true  that  formerly  courts  of  law  did 

t  But  these  cases  have  been  disapproved  of.  Tucker  v.  Tucker,  4  B.  &  Ad.  745.  And 
see  Wake  v.  Tinkler,  ]  6  E.  .36,  where  Lord  Ellenborough  said,  that  the  doctrine  laid  down 
in  them  was  rather  to  be  restrained  than  extended. 


MASTER    V.     MILLER,  703 

not  take  notice  of  an  equity  or  a  trust ;  but  of  late  years,  as  it  has  been 
found  productive  of  great  expense  to  send  the  parlies  to  the  other  side  of 
the  hall,  wherever  this  court  have  seen  that  the  justice  of  the  case  has  been 
clearly  with  the  plaintiff,  they  have  not  turned  him  round  upon  this  objec- 
tion. Then  if  this  court  will  take  notice  of  a  trust,  why  should  they  not 
of  an  equity  ?  It  is  certainly  true  that  a  chose  in  action  cannot  strictly  be 
assigned  ;  but  this  court  Avill  take  notice  of  a  trust  and  see  who  is  bene- 
ficially interested.  But  admitting  that  on  account  of  this  quaint  maxim 
there  may  still  be  some  cases  in  which  an  action  cannot  bo  maintained  by 
an  assignee  of  a  chose  in  action  in  his  own  name,  it  remains  to  be  consid- 
ered, whether  that  objection  ever  did  hold  or  ever  can  hold  in  the  case  of  a 
mercantile  instrument  or  transaction.  The  law-merchant  is  a  system  of 
equity,  founded  on  the  rules  of  equity,  and  governed  in  all  its  parts  by  plain 
justice  and  good  faith.  In  Pillan  v.  Van  Microp,  Lord  Mansfield  said,  if  a 
man  agree  to  do  what  if  finally  executed  would  make  him  liable,  as  in  a 
court  of  equity,  so,  in  mercantile  transactions,  the  law  looks  on  the  act  as 
done.  I  can  find  no  instance  in  which  the  objection  has  prevailed  in  a  mer- 
cantile case;  and  in  the  two  instances  most  universally  in  use,  it  undoubt- 
edly does  not  hold  ;  that  is,  in  the  cases  of  bills  of  exchange,  and  policies  of 
insurance.  The  first  is  in  the  present  case  ;  and  bills  are  assignable  by  the 
custom  of  merchants  :  so  in  the  case  of  policies  of  insurance  ;  till  the  late 
act  was  made,  requiring  that  the  name  of  the  person  interested  should  be 
inserted  in  the  policy,  the  constant  course  was  to  make  the  policy  in  the 
name  of  the  broker  ;  and  yet  the  owner  of  the  goods  maintained  an  action 
upon  it.  Circulation  and  the  transfer  of  property  are  the  life  and  soul  of 
trade,  and  must  not  be  checked  in  any  instance.  There  is  no  reason  for 
confining  the  power  of  assignment  to  the  two  instruments  which  I  have 
mentioned;  and  I  will  show  you  other  cases  in  which  the  court  have 
allowed  it  :  1st,  in  Fenner  v.  Mears,  where  the  defendant,  a  captain  of  an 
East  Indiaman,  borrowed  1000/.  of  Cox,  and  gave  two  Respondentia 
*bonds,  and  signed  an  indorsement  on  the  back  of  them,  acknow-  r-.  aqc)-\ 
ledging,  that  in  case  Cox  chose  to  assign  the  bonds,  he  held  himself  L  J 
bound  to  pay  to  the  assignees.  Cox  assigned  them  to  the  plaintiff,  who  was 
allowed  to  recover  the  amount  of  them  in  an  action  for  money  had  and 
received.  De  Grey,  Chief  Justice,  in  disposing  of  the  motion  for  a  new 
trial,  said(«)  Respondentia  bonds  have  been  found  essentially  necessary  for 
carrying  on  the  India  trade  ;  but  it  would  clog  these  securities,  and  be  pro- 
ductive of  great  inconvenience,  if  they  were  obliged  to  remain  in  the  hands 
of  the  first  obligee.  This  contract  is  therefore  devised  to  operate  upon  sub- 
sequent assignments,  and  amounts  to  a  declaration,  that  upon  such  assign- 
ment the  money  which  I  have  borrowed  shall  no  longer  be  the  money  of 
A.,  but  of  B.,  his  substitute.  The  plaintiff  is  certainly  entitled  to  the  money 
in  conscience,  and  therefore,  I  think  entitled  also  at  law  :  for  the  defendant 
has  promised  to  pay  any  person  who  is  entitled  to  the  money.  So  in  the 
present  case,  I  say  the  plaintiffs  are  in  conscience  entitled  to  the  money, 
and  the  defendant  has  promised  to  pay,  or,  which  is  the  same  thing,  is  by 
law  bound  to  pay  the  money  to  any  person  who  is  entitled.  The  very 
nature  and  foundation  of  an  action  for  money  had  and  received  is,  that  the 
plaintiff  is  in  conscience  entitled  to  the  money  ;  and  on  that  ground  it  has 
(a)  2  Bl.  Rep.  1272. 


704  smith's   leading   cases. 

been  repeatedly  said  to  be  a  bill  in  equity.  We  all  remember  the  sound 
and  manly  opinion  given  by  my  lord  chief  justice  here  in  the  beginning  of 
the  last  term  on  a  motion  made  by  Mr.  Bearcroft  for  a  new  trial,  wherein 
he  said,  if  he  found  justice  and  honesty  on  the  side  of  a  plaintiff  here,  he 
■would  never  turn  him  round,  in  order  to  give  him  the  chance  of  getting 
justice  elsewhere. — 2ndly,  Clarke  v.  Adair,  sittings  after  Easter,  4  Geo.  3  : 
Debray,  an  officer,  drew  a  bill  on  the  agent  of  a  regiment  payable  out  of 
the  first  money  which  should  become  due  to  him  on  account  of  arrears  or 
non-effective  money.  Adair  did  not  accept  the  bill,  but  marked  it  in  his 
book,  and  promised  to  pay  when  effects  came  to  hand.  Debray  died  before 
the  bill  was  paid  ;  and  the  administratrix  brought  an  action  against  Adair 
for  money  had  and  received.  It  was  allowed  by  all  parties  that  this  was 
not  a  bill  within  the  custom  of  merchants  :  but  Lord  Mansfield  said  that  it  is 
an  assignment  for  valuable  consideration,  with  notice  to  the  agent ;  and  he 
j-j^  -,  is  bound  *to  pay  it.  He  said  he  remembered  a  case  in  chancery, 
L  -'  where  an  agent  under  the  like  circumstances  had  paid  the  money 
to  the  administrator,  and  was  decreed  notwithstanding  to  pay  to  the  person 
in  whose  favour  the  bill  was  drawn.  3rdly,  In  Israel  v.  Douglas,  C.  B. 
29  G.  3,  1  H.  Bl.  242,  A.  being  indebted  to  B.,  and  B.  indebted  to  C,  B. 
gave  an  order  to  A.  to  pay  C.  the  money  due  from  A.  to  B.  ;  whereupon 
C.  lent  B.  a  further  sum,  and  the  order  was  accepted  by  A.  On  the  refu- 
sal of  A.  to  comply  with  the  order,  it  was  held  that  C.  might  maintain 
an  action  for  money  had  and  received  against  him.  And  Mr.  J.  Heath 
expressly  said  he  thought  in  mercantile  transactions  of  this  sort  such  an 
undertaking  may  be  construed  to  make  a  man  liable  for  money  had  and 
received.  This  opinion  was  cited  with  approbation  in  the  House  of  Lords 
in  Gibson  v.  Minet.  Lastly,  I  come  to  the  case  of  Tatlock  v.  Harris,  3  T. 
R.  182,  in  which  Lord  Kenyon,  in  delivering  the  judgment  of  the  court, 
said  "it  was  an  appropriation  of  so  much  money  to  be  paid  to  the  person 
who  should  become  the  holder  of  the  bill.  We  consider  it  as  an  agreement 
between  all  the  parties  to  appropriate  so  much  property  to  be  carried  to  the 
account  of  the  holder  of  the  bill  ;  and  this  will  satisfy  the  justice  of  the  case, 
without  infringing  any  rule  of  law."  All  these  cases  prove  that  the  remedy 
shall  be  enlarged,  if  necessary,  to  attain  the  justice  of  the  case  ;  and  that  if 
the  plaintiff  has  justice  and  conscience  on  his  side,  and  the  defendant  has 
notice  only,  the  plaintiff  shall  recover  in  an  action  for  money  had  and 
received.  Let  us  be  not  less  liberal  than  our  predecessors,  and  even  we 
ourselves  have  been  on  former  occasions.  Let  us  recollect,  as  Lord  Chief 
Justice  Wilmot  said  in  the  case  I  have  alluded  to,  that  not  only  boni  judicis 
est  ampliare  jurisdictionem,  but  ampliare  justitiam  :  and  that  the  common 
law  of  the  land  is  the  birthright  of  the  subject,  under  which  we  are  bound 
to  administer  to  him  justice,  without  sending  to  his  writ  of  subpoena,  if  he 
can  make  that  justice  appear.  The  justice,  equity,  and  good  conscience  of 
the  case  of  these  plaintiffs  can  admit  of  no  question;  neither  can  it  be 
doubted  but  that  the  defendant  has  got  the  money  which  the  plaintiffs 
ought  to  receive.  For  these  reasons  I  am  of  opinion  that  the  plaintiffs  are 
entitled  to  judgment  on  either  of  these  three  counts  in  the  declaration, 
r*4«4.1  '^'^"^^'7'  on  the  count  on  the  bill  of  exchange,  slating  *the  date  to  be 
■-  -^  the  26th  ;  or  on  the  count  for  money  paid  ;  or  on  the  count  for 
money  had  and  received. 


MASTER    V.     MILLER.  705 

Grose,  J. — The  only  question  in  this  case  is,  where  there  appears  on  the 
face  of" this  special  verdict  a  right  of  action  in  the  plaintiffs  on  any  of  the 
counts.  The  first  count  is  on  a  bill  of  exchange  dated  the  20ih  of  March  ;  but 
there  being  no  proof  of  any  bill  of  that  date,  there  is  clearly  an  end  of  that 
count.  The  second  is  on  a  bill  dated  the  26th  of  March  ;  but  the  defendant 
objects  to  the  plaintiffs'  recovering  on  this  count  also,  because  the  bill  having 
been  altered  while  it  was  in  the  hands  of  Wilkinson  and  Cooke,  it  is  not  the 
same  bill  as  that  which  was  accepted  ;  and  that  is  the  true  and  only  ques- 
tion in  the  cause.  My  idea  is,  that  the  plaintiffs'  right  of  action,  as  stated 
in  this  count,  cannot  be  maintained  at  common  law,  but  is  supported  only 
in  the  custom  of  merchants,  which  permits  these  particular  choses  in  action 
to  be  tr-ansferred  from  one  person  to  another.  The  plaintiffs,  or  indorsees, 
in  order  to  recov^er  on  this  bill,  must  prove  the  acceptance  by  the  defendant, 
the  indorsement  from  Wilkinson  and  Cooke  ta  them,  and  that  this  was  the 
bill  which  was  presented  when  it  became  due.  Now  has  all  this  been 
proved  ?  The  bill  was  drawn  on  the  26th  of  March,  payable  at  three 
months'  date  ;  the  defendant's  engagement  by  his  acceptance  was,  that  it 
should  be  paid  when  it  became  due,  according  to  that  dale  ;  but  afterwards 
the  date  was  altered  ;  the  date  I  consider  as  a  very  material  part  of  the 
bill,  and  by  the  alteration  the  time  of  payment  is  accelerated  several  days  : 
according  to  that  alteration,  the  payment  was  demanded  on  the  23rd  of 
June,  which  shows  that  the  plaintiffs  considered  it  as  a  bill  drawn  the  20th 
of  March  ;  then  the  bill  which  was  produced  in  evidence  to  the  jury  was 
not  the  same  bill  which  was  drawn  by  Peel  and  Co.,  and  accepted  by  the 
defendant ;  and  here  the  cases  which  were  cited  at  the  bar  apply.  Pigoti's 
is  the  leading  case  :  from  that  I  collect,  that  when  a  deed  is  erased  whereby 
it  becomes  void,  the  obligor  may  plead  non  est  factum,  and  give  the  matter 
in  evidence,  because  at  the  time  of  plea  pleaded  it  was  not  his  deed  ;  and 
2ndly,  that  when  a  deed  is  altered  in  a  material  point  by  himself,  or  even 
by  a  stranger,  the  deed  thereby  becomes  void.  Now  the  effect  of  that 
determination  is,  that  a  material  alteration  in  a  deed  causes  it  no  pjjfiQ--, 
longer  to  be  the  same  deed.  *Such  is  the  law  respecting  deeds :  L  -' 
but  it  is  said  that  that  law  does  not  extend  to  the  case  of  a  bill  of  exchange  ; 
whether  it  do  or  not  must  depend  on  the  principle  on  which  this  law  is 
founded.  The  policy  of  the  law  has  been  already  stated,  namely,  that  a 
man  shall  not  take  the  chance  of  committing  a  fraud,  and,  when  that  fraud 
is  detected,  recover  on  the  instrument  as  it  was  originally  made.  In  such 
a  case  the  law  intervenes,  and  says,  that  the  deed  thus  altered  no  longer 
continues  the  same  deed,  and  that  no  person  can  maintain  an  action  upon 
it.  In  reading  that  and  the  other  cases  cited,  I  observe  that  it  is  nowhere 
said  that  the  deed  is  void  merely  because  it  is  the  case  of  a  deed,  but  because 
it  is  not  the  same  deed.  A  deed  is  nothing  more  than  an  instrument  or 
agreement  under  seal  :  and  the  principle  of  those  cases  is,  that  any  altera- 
tion in  a  material  part  of  any  instrument  or  agreement  avoids  it,  because  it 
thereby  ceases  to  be  the  same  instrument.  And  this  principle  is  founded 
on  great  good  sense,  because  it  tends  to  prevent  the  part}'-,  in  whose  favour 
it  is  made,  from  attempting  to  make  any  alteration  in  it.  This  principle 
too  appears  to  me  as  applicable  to  one  kind  of  instruments  as  to  another. 
But  it  has  been  contended  that  there  is  a  diflTerence  between  an  alteration  of 

Vol.  I.-— 45 


706  SMITh'sLE  ADING     CASES. 

bills  of  exchange  and  deeds  ;  but  I  think  that  the  reason  of  the  rule  affects  the 
former  more  strongly,  and  the  alteration  of  them  should  be  more  penal  than 
in  the  latter  case.  Supposing  a  bill  of  exchange  were  drawn  for  100/., and 
after  acceptance  the  sum  was  altered  to  1,000/.:  it  is  not  pretended  that 
the  acceptor  shall  be  liable  to  pay  the  1,000/.:  I  say  that  he  cannot  be 
compelled  to  pay  the  1,00/.,  according  to  his  acceptance  of  the  bill,  because 
it  is  not  the  same  bill.  So  if  the  name  of  the  payee  had  been  altered,  it 
would  not  have  continued  the  same  bill.  And  the  alteration  in  every  respect 
prevents  the  instrument's  continuing  the  same,  as  well  when  applied  to  a 
bill  as  to  a  deed.  It  was  said  that  Piggott's  case  only  shows  to  what  time 
the  issue- relates  ;  but  it  goes  further,  and  shows,  that  if  the  instrument  be 
altered  at  any  time  before  plea  pleaded,  it  becomes  void.  It  is  true  the 
court  will  inquire  to  what  time  the  issue  relates  in  both  cases.  Then  to 
what  time  does  the  issue  relate  here  ?  The  plaintiffs  in  this  case  undertook 
^  -,  to  prove  everything  that  would  support  *the  assumpsit  in  law, 
L  -'  otherwise  the  assumpsit  did  not  arise.  It  was  incumbent  on  them 
to  prove  that,  before. the  action  was  brought,  this  identical  bill,  which  was 
produced  in  evidence  to  the  jury,  was  accepted  by  the  defendant,  presented, 
and  refused  :  but  if  the  bill,  which  was  accepted  by  the  defendant,  were 
altered  before  it  was  presented  for  payment,  then  tliat  identical  bill,  which 
was  accepted  by  the  defendant,  was  not  presented  for  payment  ;  the 
defendant's  refusal  was  a  refusal  to  pay  another  instrument ;  and  therefore 
the  plaintiffs  failed  in  proving  a  necessary  averment  in  their  declaration. 
If  the  bill  had  been  presented  and  refused  payment,  and  it  had  been  altered 
after  the  action  was  brought,  then  it  might  have  been  like  the  case  men- 
tioned at  the  bar.  It  was  contended  at  the  bar,-  that  the  inquiry  before  a 
jury  in  an  action  like  the  present  should  be,  whether  or  not  the  defendant 
promised  to  pay  the  bill  at  the  time  of  his  acceptance:  but  granting  that  he 
did  so  promise,  that  alone  will  not  make  him  liable  unless  that  same  bill 
were  afterwards  presented  to  him.  I  will  not  repeat  the  observations  which 
have  been  already  made  by  my  lord  on  the  case  in  Molloy  ;  but  the  note 
in  that  case  is  a  very  short  one  ;  and  the  principle  of  it  is  not  set  forth  in 
any  other  book,  nor  indeed  do  the  facts  of  it  sufficiently  appear.  I  doubt 
also  whether  it  was  a  determination  of  this  court:  it  only  appears  that 
there  was  a  point  made  at  nisi  prius,  but  not  that  it  was  afterwards  argued 
here.  But  it  has  been  said  that  a  decision  in  favour  of  the  plaintiffs  will 
be  the  most  convenient  one  for  the  commercial  world  ;  but  that  is  much  to 
be  doubted  ;  for  if,  after  an  alteration  of  this  kind,  it  be  competent  to  the 
court  to  inquire  into  the  original  date  of  the  instrument,  it  will  also  be 
competent  to  inquire  into  the  original  sum  and  the  original  payee,  after  they 
have  been  altered,  which  would  create  much  confusion,  and  open  a  door  to 
fraud.  Great  and  mischievous  neglects  have  already  crept  into  these  trans- 
actions ;  and  I  conceive,  that  keeping  a  strict  hand  over  the  holders  of  bills 
of  exchange,  to  prevent  any  attempts  to  alter  them,  may  be  attended  with 
many  good  efft^cts,  and  cannot  be  productive  of  any  bad  consequences, 
because  the  party  who  has  paid  a  value  for  the  bill,  may  have  recourse  to 
the  person  who  immediately  received  it  from  him.  On  these  grounds, 
-,  therefore,  I  am  of  ^opinion  that  the  plaintiffs  cannot  recover  on  the 
•-        -'  second  count.     Neither  do  I  think  that  they  can  recover  on  the 


MASTER     V.     MILLER.  707 

general  counts,  because  it  is  not  stated  as  a  fact  in  the  verdict  that  the  defen-. 
dant  received  the  money,  the  value  of  the  bill. 

Per  curiam.  Judgment  for  the  defendant. 


MASTER  V.  MILLER    IN  THE  EXCHEQUER  CHAMBER  IN  ERROR. 

On  behalf  of  the  plaintiff,  JVood  argued  as  follows:  It  has  been  con- 
tended, on  the  other  side,  in  the  court  below,  that  the  acceptor  of  the  bill, 
was  discharged  from  his  acceptance  by  the  alteration  of  the  date,  though 
made  without  the  knowledge  of  the  holder;  but  no  case  has  been  cited  to 
show,  that  an  alteration,  such  as  was  made  in  the  present  instance,  would 
vitiate  a  written  instrument,  except  it  were  a  deed.  But  there  is  a  material 
difference  between  deeds  and  bills  of  exchange.  Deeds  seldom  if  ever  pass 
through  a  variety  of  hands,  and  are  not  liable  to  the  accidents  to  which  bills 
are,  from  their  negotiabilit}'',  exposed.  There  is  therefore  good  reason  in 
the  rule,  which  requires  that  deeds  should  be  strictly  kept,  and  which  will 
not  suffer  the  least  alteration  in  them;-  but  the  same  rule  is  not  applicable 
to  bills.  In  ancient  times  the  court  decided  on  the  inspection  of  deeds,  for 
which  reason  a  profert  was  necessary,  that  they  might  see  whether  any 
fasure  or  alteration  had  taken  place  :  but  bills  of  exchange  were  always 
within  the  cognizance  of  the  jury.  The  form  of  the  issue  on  a  deed  also,  is 
different  from  that  on  a  bill  ;  in  the  one  it  is,  that  it  is  not  then,  i.  e.  at  the 
Lime  of  plea  pleaded,  the  deed  of  the  party  ;  11  Co.  27,.  a,  Pigott's  case; 
but  the  issue  on  a  bill  is,  that  the  defendant  did  not  undertake  and  promise. 
Here  the  jury  have  expressly  found  that  the  defendant  did  accept  the  bill, 
and  the  promise  arises  by  implication  of  law  from  the  acceptance.  An  alte- 
ration in  the  date,  subsequent  to  the  acceptance,  will  not  do  away  the 
implied  promise.  In  Price  v.  Shute,  "a  bill  was  drawn  payable  the  first 
of  January  ;  the  person  upon  whom  it  was  drawn  accepts  the  bill  to  be  paid 
the  first  of  March;  the  servant  brings  back  the  bill:  *the  master  r-^-..Qn-, 
perceiving  the  enlarged  acceptance,  strikes  out  the  first  of  IMarch,  L  -■ 
and  puts  in  the  first  of  January,  and  then  sends  the  bill  to  be  paid;  the 
acceptor  then  refuses  ;  whereupon  the  person  to  whom  the  moneys  were 
to  be  paid  strikes  out  the  first  of  January,  and  puts  in  the  first  of  March 
again.  In  an  action  brought  on  this  bill,  the  question  was.  Whether  these 
alterations  did  destroy  the  bill?  and  ruled  they  did  not."  2  Molloy,  109. 
In  Nichols  V.  Haywood,  Dyer,  59,  it  was  holden  in  the  case  of  a  bond,  that 
where  the  seal  was  destroyed  by  accident  before  the  trial,  the  jury  might 
find  the  special  matter,  and  being  after  plea  pleaded, it  could  not  be  assigned 
for  error,  but  the  plaintiff  recovered.  To  the  same  point  also  is  Cro.  Eliz. 
120,  Michael  v.  Stock  with.  So  in  the  present  case  it  was  competent  to  the 
jury  to  find  the  special  matter,  and  an  alteration  in  the  bill,  subsequent  to 
the  time  of  the  acceptance,  ought  not  to  prevent  the  plaintiff  from  recovering. 
In  Dr.  Leyfield's  case,  10  Co.  92,  b,  it  is  said,  "in  great  and  notorious 
extremities,  as  by  casualty  of  fire,  that  all  his  evidences  were  burnt  in  his 
house,  there,  if  that  should  appear  to  the  judges,  they  may,  in  favour  of 
him  who  has  so  great  a  loss  by  fire,  suffer  him  upon  the  general  issue  to 
prove  the  deed  in  evidence  to  the  jury  by  witnesses  :"  the  casualty  by  fire 


708  smith's  leading  cases. 

is  only  put  as  an  instance,  for  the  principle  is  applicable  to  all  cases  of  acci- 
dent. Thus  also  in  Read  v.  Brookman,  3  Term  Rep.  B.  R.  151,  a  deed 
was  pleaded  as  being  lost  by  time  and  accident,  without  a  profert :  and  the 
present  case  is  within  the  reason  and  spirit  of  that  determination. 

Bearcroft,  contra. — On  principles  of  law  and  sound  policy,  the  plaintiff 
ought  not  to  recover.  The  reason  of  the  rule  that  a  material  alteration  shall 
"vitiate  a  deed,  is  appHcable  to  all  written  instruments,  and  particularly  to 
bills  of  exchange,  which  are  of  universal  use  in  the  transactions  of  man- 
kind. And  here  there  was  n.  material  alteration  in  the  bill,  inasmuch  as 
the  time  of  payment  was  accelerated.  As  to  the  case  of  Price  v.  Shute,  it 
is  but  loosely  slated,  and  that  not  in  any  book  of  reports  ;  and  it  does 
not  appear  against  whom  the  action  was  brought. 

Lord  Chief  Justice  Eyre. — I  cannot  bring  myself  to  entertain  any  doubt 
on  this  case  ;  and  if  the  rest  of  the  court  are  of  the  same  opinion,  it  is  need- 
r*J.ftQ1  ^^^^  ^°  P"*^  ^^^^  parties  to  the  *delay  and  expense  of  a  second  argu- 
L  -'  ment.  When  it  is  admitted  that  the  alteration  of  a  deed  would 
vitiate  it,  the  point  seems  to  me  to  be  concluded  ;  for  by  the  custom  of  mer- 
chants a  duty  arises  on  bills  of  exchange  from  the  operation  of  law,  in  the 
same  manner  as  a  duty  is  created  on  a  deed  by  the  act  of  the  parties.  With 
respect  to  the  argument  from  the  negotiability  of  bills  of  exchange  and  their 
passing  through  a  variety  of  hands,  the  inference  is  directly  the  reverse  of 
that  which  was  drawn  by  the  counsel  for  the  plaintiff:  there  are  no  wit- 
nesses to  a  bill  of  exchange,  as  there  are  to  a  deed  ;  a  bill  is  more  easily 
altered  than  a  deed  ;  if  therefore  courts  of  justice  were  not  to  insist  on  bills 
being  strictly  and  faithfully  kept, alterations  in  them  highly  dangerous  might 
take  place,  such  as  the  addition  of  a  cipher  in  a  bill  for  1,00/.,  by  which 
the  sum  might  be  changed  to  1,000Z.,  and  the  holder  having  failed  in 
attempting  to  recover  the  1,000/.  might  afterwards  take  his  chance  of  recov- 
ering the  1,00/.,  as  the  bill  originally  stood.  But  such  a  proceeding  would 
be  intolerable.  ■  It  was  said  in  the  argument  that  the  defendant  could  not 
dispute  the  finding  of  the  jury,  that  they  had  found  that  he  accepted  the 
bill,  and  therefore  that  the  substance  of  the  issue  was  proved  against  him. 
But  the  meaning  of  the  plea  of  non  assumpsit  is,  not  that  he  did  not  accept 
the  bill,  but  that  there  was  no  duty  binding  on  him  at  the  time  of  plea 
pleaded. («)  There  are  many  ways  by  which  the  obligation  of  the  accept- 
ance might  be  discharged  ;  for  instance,  by  payment.  And  it  was  certainly 
competent  to  him  to  show,  that  the  duty  which  arises  prima  facie  from  the 
acceptance  of  a  bill  was  discharged  in  the  present  case  by  the  bill  itself 
being  vitiated  by  the  alteration  which  was  made. 

Lord  Chief  Baron  Macdonald. — I  see  no  distinction  as  to  the  point  in 
question  between  deeds  and  bills  of  exchange  ;  and  I  entirely  concur  with 
my  Lord  Chief  Justice  in  thinking  there  would  more  dangerous  conse- 
quences follow  from  permitting  alterations  to  be  made  in  bills  than  in 
deeds. 

The  other  judges  declared  themselves  of  the  same  opinion. 

Judgment  affirmed. 

(a)  Sec  Dong].  Ill  &  112,  8vo.  Sullivan  v.  Montague,  and  the  notes  there. 


MASTER    V.    MILLER. 


709 


r*4Qni  *Since  the  decision  of  this 
L  -'    case   it  never  has  been  doubt- 

ed that  a  material  alteration  in  a  bill  or 
note  operates  as  a  satisfaction  thereof, 
except  as  against  parlies  consenting  to 
such  alteration.  In  Alderson  v.  Lang- 
dale,  3  B.  &  Ad.  660  the  doctrine  was 
carried  still  further,  and  it  was  held  that 
such  an  alteration  made  by  the  plaintiff 
operated  as  a  satisfaction  not  only  of  the 
bill,  but  of  the  debt  which  it  was  given 
to  secure.  In  Alderson  v.  Langdale, 
the  dehtor  was  the  drawer  of  the  bill 
altered;  but  in  Atkinson  v.  Hawdon,  2 
A.  &:.  E.  269,  it  was  held  tiiat  where  the 
debtor,  bemg  himself  tlie  maker'  or 
acceptor,  could  have  had  no  remedy  on 
the  instrument  against  any  other  party 
to  it,  his  liability  would  not  be  extin- 
guished by  the  alteration. 

Alterations  in  the  date,  sum,  or  time 
for  payment,  or  the  insertion  of  words 
authorising  transfer  or  expressing  the 
value  to  be  received  on  some  particular 
account,  adding  the  name  of  a  maker  or 
drawer,  or  an  unwarranted  j)lace  for  pay- 
ment, are  material  alterations  within 
the  above  rule.  See  Walton  v.  Hast- 
ings, 4  Camp.  223,  1  Stark.  215;  Outh- 
waite  V.  Luntly,  4  Camp.  179  ;  Bowman 
V.  Nicholl,  5  T.  R.  537;  Cardwell  v. 
Martin,  9  East,  190;  Kershaw  v.  Cox, 
3  Esp.  246;  Knill  v.  Williams,  10  East, 
431;  Clark  v.  Blackstock,  Holt,  474; 
Tidmarsh  v.  Grover,  1  M.  &  S.  735; 
Cowie  V.  Halsall,  4  B.  &  A.  197;  R.  v. 
Treble,  2  Taunt.  328;  Alderson  v.  Lang- 
dale,  3  B.  &  Ad.  660 ;  Taylor  v.  Mosely, 
6  C.  &  P.  278. 

Even  if  the  alterations  be  made  with 
the  consent  of  all  the  parties  to  the  bill 
or  note;  still  as  it  thereby  becomes  a 
new  contract,  the  old  stamp  will  not 
suffice,  Bowman  v.  Nicholl,  5  T.  R.  .537 ; 
unless,  indeed,  the  alteration  was  merely 
to  correct  a  mistake,  and  so  render  ihe 
instrument  what  it  was  originally  in- 
tended to  have  been.  Kershaw  v.  Cox, 
3  Esp.  246;  Jacob  v.    Hart,  G    M.   & 


S.  142;  Clarke  v.  Blackstock,  Holt, 
474. 

An  alteration  made  with  the  consent 
of  parties  before  a  bill  or  note  has  issued 
is  of  no  importance,  for,  up  to  the 
time  of  issue  it  is  in  fieri ;  Uownes  v. 
Richardson,  Bayley  on  Bills,  5tli  ed. 
116;  Johnson  v.  D.  of  Marlborough,  2 
Stark.  313  ;  so  when  made  by  an  agent 
of  all  parties.  Sloman  v.  Cox,  5  Tyrwli. 
175.  And  a  bill  or  note  is  said  to  be 
issued  when  it  is  in  the  hands  of  some 
party  entitled  to  make  a  claim  upon  it. 
Dovvnes  v.  Richardson,  ubi  supra  ;  Card- 
well  V.  Martin,  9  East,  190;  Kenners- 
ley  V.  Nash,  1  Stark.  452. 

If  a  bill  or  note  exhibits  the  appear- 
ance of  alteration,  it  lies  upon  the  holder 
to  account  for  it.  Hen  man  v.  Dicken- 
son, 5  Bing.  183  ;  Bishop  v.  Chambre,  I 
M.  &  M.  116;  Knight   v.  Clements,  8 

A.  &  E.  213.  [Clifford  v.  Parker,  2  M. 
&  Gr.  909;  Cariss  v.  Tattersall,  Id. 
890.] 

A  cancellation  by  mistake  does  not 
affect  the  liability  of  the  parties  whose 
signatures  are  cancelled.  Roper  v.  Birk- 
beck,  15  East,  17;  Wilkinson  v.  John- 
son, 3  B.  «Si.  C.  428;  Novelli  v.  Rossi,  2 

B.  &  Ad.  765.  Nor  does  the  addition  of 
a  thing  perfectly  immaterial.  Catton  v. 
Simpson,  8  A.  &  E.  136.  [See  Gould 
V.  Coombs,  1  M.,  Gr.  &  S.  543.] 

When  an  acceptance  is  altered  by 
inserting  a  place  of  payment,  without 
adding  the  words  "  there  only,"'  or  "  not 
elsewhere,"  the  alteration  is,  in  an  ac- 
tion against  the  acceptor,  immaterial 
if  made  by  his  consent,  st.  1  &  2  G.  4,  c. 
78,  having  rendered  the  above  words 
necessary  in  order  to  a  special  accept- 
ance. Walter  v.  Cubley,  2  C.  &  M. 
151.  But  if  made  without  his  sanction, 
it  avoids  the  bill,  being  the  unauthorised 
appointment  of  an  agent  to  pay  the  bill. 
Taylor  v.  Mosely,  6  C.  &  P.  278; 
Mackintosh  v.  Haydon,  R.  &,M.  362; 
Desbrowe  v.  Wetherby,  1  Moo.  &  Rob. 
438 ;  Calvert  v.  Baker,  4  M.  &  W.  417. 


The  practice  which  allows  deeds  to  be  declared  upon  wilhont  profert, 
and,  therefore,  excuses  iheir  destruction  or  loss,  has  greatly  modified  the 
consequences  resulting  from  alterations  in  deeds.  There  is  no  doubt,  that 
if,  by  any  agency,  a  verbal  alteration  be  made,  which  destroys  the  identity 
of  the  instrument,  the  altered  instrument  may  be  avoided  by  plea  of  non  est 


710  smith's    leading   cases. 

factum,  because  that  is   not  the  deed  which  the  party- executed :  but  the 
legal  destruction  of  the  original  deed,  cannot  have  a  greater  effect  than  its- 
actual  destruction  or  loss,  and,  therefore,  by  the  modern  practice,  the  origf- 
nal  deed  may  be  set  up  by  parol  evidence;  only,  the  person  by  whose  act 
or  privity  the  spoliation  was  committed,  shall  not  be  relieved  against  his 
own  fraud  or  folly.     Fraud  in  the  person  altering,  is,  therefore  the  ground 
of  the  instrument  being  made   effectively  void.     Accordingly,  the   rule,  as 
now  received,  is,  that,  an  alteration,  after  execution,  made  by  one  claiming 
a  benefit  under  the  deed,  or  by  his  privity,  destroys  the  instrument  as  to 
him,   and    he   can   never   sue   upon   it.    Lewis   &  Lewis    v.    Payne,  8 
Cowen,  71  ;   Withers   v.  Atkinson,  1  Watts,  237.  I^he  instrument,  as 
far  as  the  spoliator  is  concerned,  is  from  that  time  destroyed  and  extin- 
guished :    its    past    operation    is     not    counteracted ;    executed    contracts 
evinced  by  it,  are  not  rescinded  ;  estates  and  titles  vested  by  transmuta- 
tion of  possession,  whether  by  common  law  or  the  statute  of  uses,  are  not 
devested:  but  no  future  benefit  can  be  derived  by  that  party,  from  the 
deed,  and  no  covenants,  obligations,  or  other  executory  contracts,  can  be 
enforced  by  him  through  its  instrumentality;  Herrick  v.  Malin,  22  Wendell, 
388,  in  the  Court  of  Errors ;  The  People  v.  Muzzy,  1  Denio,  240.  243  ; 
Briggs  &  Briggs   v.  Glen   &  Bryan,  7  Missouri,  572.  575  ;  Hatch  and 
another  v.  Hatch  and  another,  9  Massachusetts,  307  ;  Barrett  v.  Thorndike, 
1  Greenleaf,  73.      But  an   alteration,  or  spoliation,  ^^y  tearing  the  seals 
off",  made  or  committed  not  by  the  party  suing,  nor  bj^^  privity,  works  no 
harm;  as,  if  it  be  done  by  a  stranger,  Rees  v.  Overbaugh,  6  Cowen,  746; 
Nichols  V.  Johnson,  10  Connecticut,  193;  Rhoads  v.  Frederick,  8  Watts, 
448;  Medlin  V.  Platte  count}',   8  Missouri,  235  ;  or  by  the  obligor,  or  one 
of  the  obligors;  Cutts  v.  U.  S.,  1  Gallison,  69;   Barrington  and  others  v. 
Bank  of  Washington,  14  Sergeant  &  Rawle,  405.     And  where  an  altera- 
tion is  made  in  a  deed,  by  a  party  entitled  under  it,  it  is  avoided  only  as  to 
him,  and  the  instrument  continues  unchanged  in  law,  as  to  other  inno- 
cent parties  to  it.     Thus  where  a  conveyance  of  land  in  fee  is  made,  with 
covenants  reserving  an  annual  rent,  and  after  execution  the  deed  is  altered 
in  a  material  part  by  the   grantor,  the  law,  in  consonance  with  justice  and 
policy,  avoids   the  covenants   reserving  rents  in  favour  of  the  fraudulent 
grantor,   but  preserves  the  fee-simple  to  the  innocent  grantee  discharged 
from  the  covenants  in  the  deed,  and  the  covenant  being  avoided  as  relates 
to  the  covenantee  and   his  right  of  action  extinguished,  a  bona  fide  pur-* 
chaser  from  him  is  in  no  better  situation  than  he  was  ;  Arrison  v.  Harm- 
stead,  2  Barr,  191.  194.     The  distinction  stated  above,  between  an  executed 
and  an  executory  operation  of  a  deed, -that  is  between  the  effect  of  an  alter- 
ation in  avoiding  rights  in  action  created  by  it,  and  not  vacating  the. transfer 
of  an  interest,  or  the  discharge  of  a  right,  once  executed  by  it,  is  recognized 
in  the  lute  English  cases,  although  they  differ  from  the  American  cases,  in 
holding  that  a  material  alteration  made  by  a  stranger  voids  a  deed  as  com- 
pletely as  when  made  by  the  party  holding  it.     In  Davidson  v.  Cooper,  11 
Meeson  &  Welsby,  778.  800  ;  affirmed  on  error,  13  Id.  343,  Lord  Abinger, 
C.  B.,  said  that  the  strictness  of  the  rule  in   Pigot's  case,  that  a  material 
alteration,  by  the  party  holding  it  or  by  a  stranger,  renders  the  instrument 
altogether  void  from  the  time  when  such  alteration  is  made,  had  not  been 
relaxed  in  modern  times,  when  the  altered  deed  is  relied  on  as  the  founda- 
tion of  a  right  sought  to  be  enforced  ;  but  that  the  case  is  different,  where 


MASTER     V.     MILLER.  '  711 

the  deed  is  produced  merely  as  proof  of  some  right  or  title  created  by,  or 
resulting  from  its  having  been  executed;  as  in  the  case  of  an  ejectment  to 
recover  lands  which  have  been  convoyed  by  lease  and  release  :  "There," 
said  Lord  Abinger,  "  what  the  plaintiflis  seeking  to  enforce,  is  not,  in  strict- 
ness, a  right  under  the  lease  and  release,  but  a  right  to  the  possession  of 
the  land,  resulting  from  the  fact  of  the  lease  and  release  having  been  exe- 
cuted. The  moment  after  their  execution,  the  deeds  become  valueless,  so 
far  as  they  relate  to  the  passing  of  the  estate,  except  as  afibrding  evidence 
of  the  fact  that  they  were  executed.  If  the  effect  of  the  execution  of  such 
deeds  was  to  create  a  title  to  the  land  in  question,  that  title  cannot  be 
affected  by  the  subsequent  alteration  of  the  deeds :  But  if  the  party  is  not 
proceeding  by  ejectment  to  recover  the  land  conveyed,  but  is  suing  the 
grantor  under  his  covenants  for  title,  or  other  covenants  contained  in  the 
release,  then  the  alteration  of  the  deed  in  any  material  point,  after  its  exe- 
cution, whether  made  by  the  party  or  by  a  stranger,  would  certainly  defeat 
the  right  of  the  party  suing  to  recover."  In  like  manner  in  Todd  v.  Emly, 
11  Id.  1.  4,  on  a  replication  of  non  est  factum  to  a  release  pleaded,  a  deed 
of  release  of  which  the  seal  had  been  torn  off'  by  the  party  released,  was 
thought  by  Parke,  B.  to  be  admissible  in  evidence,  because  the  replication 
meant  that  it  was  not  the  deed  of  the  plaintiffs  for  the  purpose  of  proving 
a  release ;  and  therefore  that  the  issue  was  proved  by  the  production  of  a 
deed  which  had  operated  as  a  deed,  though  now  in  a  cancelled  state. 

The  rule  as  to  notes  is  essentially  the  same  as  that  applied  to  deeds.  An 
alteration  by  accident,  mistake,  or  the  act  of  a  stranger,  after  a  party's  right 
upon  a  note  is  complete,  will  not  prevent  his  recovering  upon  it ;  but  if  the 
note  be  altered  by  a  party  entitled  upon  it,  it  is  wholly  voided  as  to  him  ; 
Martendale  v.  Follet,  1  New  Hampshire,  95.  And  where  an  instrument, 
which  is  meant  to  be  the  only  security  of  a  debt,  and  in  which  previous 
implied  and  parol  liabilities  have  become  merged,  is  voided  by  a  fraudulent 
alteration  on  the  part  of  the  creditor,  he  cannot  recover  on  the  consideration 
of  the  contract;  Martendale  v.  Follet;  Mills  v.  Starr,  2  Bailey,  359.  But 
see  Serle  v.  Norton,  9  M.  &  W.  309. 

Whether  the  alteration  was  made,  before  or  after  execution,  is  for  the 
jury  :  the  first  presumption  of  fact,  from  omitting  to  note  the  alteration  at 
the  attesting,  is,  that  it  was  made  afterwards  ;  Morris's  Lessee  v.  Vanderen, 
1- Dallas,  64;  Prevost  v.  Gratz,  1  Peters's  C.  C.  365;  but  if  the  alteration 
be  against  the  interest  of  the  party  appearing  to  have  made  it,  or  claiming 
under  it,  or  be  immaterial,  or  there  be  other  circumstances,  this  may  be 
rebutted:  and,  properly  the  whole  case  is  for  the  jury.  Heffelfinger  v. 
Shutz  et  al,  16  Sergeant  &  Rawie,  44;  Bank  v.  Hall,  1  Halsted,  215; 
Bailey  v.  Taylor  and  another,  11  Connecticut,  531,  where  the  cases  on  this 
subject  are  examined  at  considerable  length  ;  Jackson  v,  Osborne,  2  Wen- 
dell, 555.  In  Davis  v.  Jenney,  1  Metcalf,  221,  the  case  of  a  note,  Morton, 
J.  charged  the  jury,  that  in  the  absence  of  all  explanation,  the  legal  pre- 
sumption was,  that  the  alteration  was  after  execution,  and  the  court  above, 
per  Shaw,  C.  J.,  said,  that  they  considered  it,  "a  question  of  very  great 
importance,"  but  it  was  not  necessary  then  to  decide  it.  The  opinion  of 
the  Chancellor,  adopted  by  the  Court  of  Errors,  in  Herrick  v.  Malin, 
appears  to  have  been,  that  if  the  alteration  were  material,  the  party  claim^ 
ing  on  the  deed  must  explain  it ;   if  immaterial,  it  will  rather  be  presumed 


712    *  smith's  LEADING  CASES. 

to  have  been  done  before  execution.  Wickes  v.  Caulk,  5  Harris  &  John- 
son, 36.  41,  seems  to  say,  that  the  burden  of  proof  is  on  him  who  alleges 
that  the  alteration  was  after  execution.  And  in  Matthews  v.  Coulter,  9 
Missouri,  705.  710,  in  the  case  of  an  unsealed  agreement,  it  was  held  that 
an  alteration  would  be  presumed  to  have  been  made  before  or  at  the  time  of 
signing  unless  there  be  something  to  create  suspicion  or  raise  a  presumption 
to  the  contrary,  as,  if  the  ink  differ,  or  the  handwriting  be  that  of  a  holder 
interested  in  the  alteration,  in  which  case,  the  alteration  must  be  explained. 
On  the  other  hand,  in  Hills  v.  Barnes,  11  New  Hampshire,  395,  in  the  case 
of  a  note,  it  was  held  that  the  question  as  to  the  time  when  the  alteration 
was  made,  is  for  the  jury,  who  in  some  cases  may  be  satisfied  from  the 
appearance  of  the  paper  itself,  that  the  alteration  was  made  before  execu- 
tion ;  but  that  in  the  absence  of  all  evidence,  either  extrinsic,  or  on  the  face 
of  the  note,  as  to  the  time  of  the  alteration,  it  will  be  presumed  to  have  been 
made  subsequently  to  the  execution  and  delivery  of  the  note  ;  and  that  this 
rule  is  necessary  for  the  security  of  the  maker  of  the  note  ;  who  must 
otherwise  take  evidence  of  the  appearance  of  the  note  when  it  is  delivered, 
in  order  to  protect  himself  against  alterations  subsequently  made  without  his 
privity. 

If  the  deed  or  note  has  been  in  the  possession  of  the  party  claiming  upon 
it,  it  affords  a  presumption  that  the  alteration  was  made  by  him  ;  and  it  lies 
upon  him  to  show  that  he  was  not  privy  to  it.  Chesley  v.  Frost,  1  New 
Hampshiae,  145;  Bowers  v.  Jewell,  2  id.  543;  Barrington  and  others  v. 
Bank  of  Washington,  14  Sergeant  &  Rawle,  423.  In  U.  S.  v.  Linn  et  al., 
1  Howard's  Sup.  Ct.  104,  a  distinction  is  noted  between  those  alterations 
which  appear  upon  the  face  of  the  instrument,  and  those  which  are 
extrinsic:  in  that  case,  in  debt  on  an  instrument  appearing  to  be  a  regular 
bond,  the  plea  alleged  that  after  the  defendant  had  signed,  the  instrument 
was,  without  his  consent  or  authority,  altered  by  affixing  a  seal  ;  and  the 
court  held  the  plea  bad,  for  not  alleging  that  the  alteration  was  made  by  the 
plaintiff',  or  with  his  privity  ;  for  as  the  plea  stood,  the  alteration  might  have 
been  either  by  the  plaintiff'  or  by  a  stranger,  and  as  pleas  are  to  be  taken 
most  strongly  against  the  party  pleading,  the  court  would- intend  it  was  the 
latter;  and  they  said  that  where  the  alteration  appears  on  the  face  of  the 
instrument,  as  an  erasure  or  alteration,  the  law  imposes  on  the  party  claim- 
ing under  it,  the  burden  of  explaining  the  alteration,  for  it  was  presumed  to 
have  been  made  while  in  his  possession ;  but  that  where  the  instrument 
carries  with  it  no  appearance  of  alteration,  the  defendant  who  in  his  plea 
alleges  a  fatal  alteration,  must  show  it  to  have  been  such. 

An  alteration,  however,  even  in  a  material  part,  may  be  made  in  a  deed 
or  note,  after  execution,  if  it  is  proved,  or  may  be  presumed,  to  have  been 
done  by  consent  of  all  the  parties  ;  Woolley  v.  Constant,  4  Johnson,  54  ; 
Speake  et  al.  v.  U.  S.  9  Cranch,  28  ;  Barrington  et.  al.  v.  Bank  of  Wash- 
ington, 14  Sergeant  &  Rawle,  405  ;  Stephens  v.  Graham,  7  id.  505;  Smith 
V.  Weld,  2  Barr,  54;  Willard  v.  Clarke,  7  Melcalf,  435.  437;  Hills  v. 
Barnes,  11  New  Hampshire,  395  ;  Beary  v.  Haines,  4  Wharton,  17:  but 
the  parties  must  be  at  that  time  legally  competent  to  consent.  Moore  and 
others  v.  Lessee  of  Bickham  and  West,  4  Binney,  1.  And  a  deed  when 
thus  altered  in  a  material  part,  takes  effect  from  the  time  of  the  alteration,  as 
a  re-execution  of  it ;  Penny  v.  Corwiihe,  18  Johnson,  499  ;  Tompkin  v. 


MASTER    V.     MILLER.  713 

Corwin,  9  Covven,  255  ;  in  Barrington  et  al.  v.  Bank  of  Washington,  it  is 
said  by  Duncan,  J.,  that  this  agreement  to  alter  and  accept  the  new  obliga- 
tion is  a  quasi  re-execution  ;  but  in  Speake  v.  U,  S.,  it  was  the  opinion  of 
Livingston,  J,,  against  the  majority  of  the  court,  that  if  the  alteration  be 
material,  there  should  be  a  re-execution ;  and  this  opinion  seems  to  rest  on 
strong  reasons:  see  Miller  v.  Stewart,  9  Wheaton,  680.  708.  In  Connec- 
ticut it  is  held,  that  after  acknowledgment  before  a  magistrate,  a  material 
alteration,  even  by  consent,  cannot  be  made,  without  re-acknowledgment, 
though  an  immaterial  one  may  ;  Colt  v.  Starkweather,  8  Connecticut,  290: 
and  in  Pennsylvania,  not  the  smallest  alteration,  even  by  consent,  can  be 
made  after  acknowledgment,  without  there  be  a  re-acknowledgment. 
Moore  and  others  v.  Lessee  of  Eickham  and  West. 

This  consent  of  the  parties, — at  least,  (and  probably  only,)  where  the 
alteration  is  immaterial — may  be  implied,  as  well  as  express  and  actual :  it 
may  be  implied  from  circumstances,  custom,  the  nature  of  the  alteration, 
&c. ;  Hale  v.  Russ,  1  Grtenleaf,  334 ;  Ogle  v.  Graham,  2  Penrose  & 
Watts,  132:  and  see  Woodworth  v.  Bank  of  America,  19  Johns.  391; 
where  one  of  the  main  points  held  by  the  majority  against  the  minority 
appears  to  have  been,  that  consent  or  authority  to  make  material  alterations 
cannot  be  implied,  (at  least  in  law,)  and  that  such  alterations  can  only  be 
made  with  the  assent  of  the  party  to  be  charged.  In  Texira  v.  Evans,  1 
Anst.  228,  it  was  held  that  a  bond  delivered  with  a  blank  for  the  name  of 
the  obligee,  and  for  the  sum  due,  and  afterwards  filled  up,  was  valid;  but 
this  was  overruled  in  Hibblewhite  v.  M'Morine,  6  M.  &  W.  200.  The 
principle  of  the  latter  case  is  adhered  to  in  North  Carolina  and  Arkansas  ; 
M'Kee  v.  Hicks,  2  Devereux,  379;  Davenport  v.  Sleight,  2  Devereux  & 
Battle,  381  ;  Graham  v.  Holt,  3  Iredell's  Law,  300  ;  Cross  and  Bizzell  v. 
State  Bank,  5  Pike,  525  :  but  in  most  other  states  of  the  union,  the  autho- 
rity of  Texira  v.  Evans,  appears  to  be  followed.  See  the  cases  collected  in 
note  to  Hibblewhite  v.  M'Morine,  6  M,  &  W.  216,  Am.  ed. 

As  to  the  question,  whether  an  immaterial  alteration  will  avoid  an  instru- 
ment, or  whether,  to  have  that  effect,  it  must  be  material,  there  has  been 
some  divergency  in  the  cases,  in  respect  to  deeds  and  to  notes  :  though, 
probably,  the  rule  now  finally  arrived  at,  is  in  effect  the  same  as  to  both. 

As  to  Deeds:  in  some  of  the  cases,  the  dicta  are,  that  an  immaterial 
alteration  by  a  party  claiming  under  the  deed,  will  avoid  it  as  to  him  ; 
Morris's  Lessee  v.  Vanderen,  1  Dallas,  64.  67 ;  Smith  v.  Weld,  2  Barr, 
54 ;  Barrett  v.  Thoriidike,  1  Greenleaf,  73  ;  Lewis  &  Lewis  v.  Payne,  8 
Cowcn,  71  :  in  others,  it  is  doubted.  Hatch  et  al.  v.  Hatch  et  al.,  9  Massa- 
chusetts, 307;  Hunt  v.  Adams,  6  id.  521  ;  O'Neale  v.  Long,  4  Cranch,  60: 
and,  in  some,  it  is  said,  that  only  material  alterations  are  fatal.  Smith  v. 
Crooker  et  al.,  5  Massachusetts,  538.  Upon  principle,  it  would  seem,  that 
the  slightest  alteration  in  the  deed  must  make  a  variance  in  the  instrument, 
and  cause  it,  in  its  new  state,  to  be  not  the  deed  originally  made  by  the 
party.  But  the  doctrine  of  implied  consent  from  circumstances  has  been 
carried  so  far  in  the  modern  cases,  (supra,)  that  there  can  be  little  reason  to 
doubt,  upon  the  principle  of  all  those  cases,  that  the  circumstance  of  the 
alteration  being  immaterial, — viz.  not  in  the  least  afl^ecting  the  nature  or 
extent  of  the  obligor's  liability — is  evidence  from  which  the  jury  may  pre- 
sume an  authority  to  alter,  or  is  even  a  presumption  in  law  of  authority  and 


714  smith's   leading   cases. 

consent :  and  this,  which  has  been  repeatedly  applied  to  notes,  in  Hale  v. 
Russ,  1  Green  leaf,  334,  recognised  in  the  case  of  a  deed  :  and  see  Stahl  v. 
Berger,  and  Beary  v.  Haines.  So  that,  practically,  the  rule  may  be  taken 
to  be,  that  a  material  alteration  by  a  party,  of  itself  avoids  the  deed  as  to 
him  :  but  an  immaterial  alteration  does  not,  unless  it  is  fraudulent,  (It  may 
be  obsewed,  that  in  the  New  Hampshire  cases  it  is  held,  that  an  alteration, 
to  avoid  a  deed,  in  any  case,  must  be  actually  fraiiduknt ;  i.  e.  material,  of 
which  the  court  judge,  and  from  interested,  mo.tives,  on  which  the  jury 
decide  ;  and  to  this  view,  the  case  of  Adams  and  another  v.  Frye,  3  Met- 
calf,  103,  in  Massachusetts,  (post,)  appears  to  accede  :  but  the  Pennsylvania 
cases  clearly  hold  that  a  material  alteration  by  the  party,  of  itself  voids  the 
instrument.) 

Alterations  in  deeds  are  immaterial,  "where  neither  the  rights  nor  inter- 
ests, duties  nor  obligations.,  of  either  of  the  parties,  are  in  any  manner 
affected  or  changed  ;"  Smith  v.  Crooker  et  al.,  5  Massachusetts,  538.  In 
Marshall  and  another  v.  Gougler,  10  Sergeant  &  Rawle,  164,  it  was  held 
that  adding  new  names  as  witnesses,  for  the  purpose  of  authenticating  the 
instrument,  was  a  material  alteration,  for  it  affected  the  evidence;  in  Adams 
and  another  v.  Frye,  where  this  point  was  examined  at  length,  the  court  lay 
down  the  rule  thus:  "  1.  That  if  the  obligee  of  an  unattested  bond,  after 
the  execution  and  delivery  thereof,  shall,  without  the  knowledge  and  assent 
of  the  obligor,  fraudulently,  and  with  a  view  to  gain  some  impropej  advan- 
tage thereby,  procure  a  person  who  was  not  present  at  the  execution  of  the 
bond,  to  sign  his  name  thereto  as  an  attesting  witness,  such  act  will  avoid 
the  bond,  and  discharge  the  obligor  from  all  liability  on  the  same.  ...  2. 
That  the  act  of  the  obligee  in  procuring  the  signature  of  one  as  a  witness, 
who  was  not  present  at  its  execution,  and  not  duly  authorised  to  attest 
it,  will,  if  unexplained,  be  prima  facie,  sufficient  to  authorise  the  jury  to 
infer  the  fraudulent  intent;  but  that  it  is  competent  for  such  obligee  to 
rebut  such  inference;  and  if  the  act  be  shown  to  have  been  done  without 
any  fraudulent  purpose,  the  bond  will  not  be  avoided  by  such  alteration:" 
— The  proper  manner  of  taking  advantage  of  an  alteration  in  a  deed  is  by 
plea  of  non  est  factum  :  that  plea  goes  to  the  existence  of  the  instrument/ 
as  the  deed  of  the  defendant,  at  the  time  of  plea  pleaded;  Barrington  and 
others  v.  Bank  of  Washington,  14  Sergeant  &  Rawle,  423 ;  Smith  v.  Weld, 
2  Barr,  54  ;  Miller  v.  Stewart,  9  Wheaton,  680.  716. 

As  to  Notes  :  it  seems  generally  agreed,  that  an  alteration,  to  avoid  them, 
must  be  material;  Bowers  v.  JeWell,  2  New  Hampshire,  453  ;  Flomer  v. 
Wallis,  11  Massachusetts,  309.  .A  material  alteration,  such  as  would  avoid 
a  note,  would  he  ;  the  altering  of  the  date,  Stephens  v.  Graham,  7  Sergeant 
&  Rawle,  505  ;  Hocker  v.  Jamison,  2  Watts  &  Sergeant,  438  ;  the  inser- 
tion of  the  negotiable  words  "  or  order"  in  a  note  before  not  negotiable; 
Pepoon  V.  Stagg  &  Co.,  1  Nott  &  M'Cord,  102;  Haines  v.  Dennett,  11 
New  Hampshire,  181;  the  insertion  of  "young"  before  "merchantable 
stock"  in  the  promise ;  Martendale  v.  Follet,  1  New  Hampshire,  95  :  in 
Massachusetts,  the  adding  of  a  subscribing  witness,  when  there  was  none 
before,  which  in  that  state  affects  the  operation  of  the  Statute  of  Limita- 
tions ;  Homer  v.  Wallis;  see  Smith  v,  Dunham,  8  Pickering,  246;  Adams 
and  another  v.  Frye ;  (but  adding  a  second  witness  where  there  was 
already  one,  is  immaterial,  for  it  does  not  affect  the  operation  of  the  statute ; 


MASTER    V.     MILLER.  715 

ForJ  V.  Ford,  17  Pickering',  418;)  any  alteration  which  affects  the  evidence 
of  the  validity  or  operation  of  the  note  ;  Bates  v.  Hill,  1  New  Hampshire, 
96  :  appointing  a  particular  place  of  payment  when  before  none  was  fixed; 
Woodworth  v.  Bank  of  America,  19  Johnson.  391  ;  making  a  note  payable 
on  demand,  which  before,  was  payable  on  time  ;  Wheelock  v.  Freeman,  13 
Pickering,  165  ;  and  extending  the  time  of  payment  from  six  to  sixty  days, 
is  such  a  material  alteration,  as  discharges  an  indorser ;  Davis  v.  Jenney,  1 
Metcalf,  221.  But  an  alteration  or  insertion  is  immaterial,  if  it  is  the  inser- 
tion of  only  what  the  law  would  imply,  or  the  correcting  of  a  mistake;  Hunt 
V.  Adams  ;  Bowers  v.  Jewell;  or  the  addition  of  senseless  Avords;  Granite 
Railway  Company  v.  Bacon,  15  Pickering,  239  :  in  Wheelock  v.  Free- 
man, 13  id.  165.  168,  the  test  as  to  notes  is  said  to  consist  in  the  inquiry 
»  whether  the  notes  would  have  the  same  legal  effect  and  operation  after  the 
alteration  as  before." 

Although  a  material  alteration,  made  without  the  privity  of  the  party 
claiming  upon  it,  and  after  his  title  upon  it  has  been  vested  and  complete, 
will  not  discharge  the  liability  of  the  maker  of  the  note,  yet  care  must  be 
taken  as  to  the  mode  of  declaring.  You  must  not  declare  upon  the  note 
in  its  altered  state,  for  that  would  cause  a  variance ;  see  Stephens  v. 
Graham  and  another,  7  Sergeant  &  Rawle,  505:  you  must  declare  upon 
the  note  as  it  was  actually  made  by  the  defendant:  and  it  is.  safer  to  take 
notice,  in  the  declaration,  that  the  note  was  altered  without  the  privity  of 
the  party ;  see  Phcenix  Ins.  Co.  v.  Walden  &  Co.,  Anthon's  N.  P.  126, 
note  :  and  then  the  jury  will  decide  from  the  note  and  the  explanatory  evi- 
dence, Avhether  the  defendant  made  a  note  such  as  that  declared  upon. 
-  The  cases  in  which  the  circumstance  of  the  alteration's  having  been 
■made  without  the  privity  of  the  person  claiming,  prevents  its  being  fatal, 
are  those  in  which,  previously  to  the  alteration,  the  plaintiff' had  acquired  a 
good  title  to  the  money  on  the  note  :  and  the  alteration  in  the  instrument 
makes  an  apparent  discrepancy  or  chasm  between  his  title  as  set  out  in  the 
declaration,  and  the  evidence  ;  and  it  is  this  apparent  variance  which,  when 
it  was  not^  produced  by  the  fraud  of  the  party,  may  be  explained.away  by 
parol  evidence.  But  it  must  be  observed  that  there  are  cases,  in  the  suc- 
cessive transfer  or  negotiation  of  notes  and  bills,  where  a  variation  made  in 
the  instrument  during  these  transfers,  may  produce  a  chasm  in  the  title  of 
the  claimant;  causing  the  bill  which  has  been  indorsed  to  him  to  be  not 
the  biil  made  by  the  defendant :  and  this  variance,  as  it  affects  the  title  of 
the  Indorsee,  is  incurable,  although  there  be  no  fault  in  the  plaintiff".  This 
is  the  point  involved  in  Master  v.  Miller ;  a  case  which  has  been  often 
misunderstood,  and,  on  that  account,  sometimes  complained  of.  The  facts 
are  briefly  thus  :  Wilkinson  &  Cooke  hold  Miller's  acceptance  of  a  note 
dated  26th  March  ;  while  the  note  is  in  their  hands,  and  before  its  indorse- 
ment and  dehvery  to  Master,  the  date  is  altered,  by  some  one  unknown,  to 
20th  March  ;  whereby  the  identity  of  the  note  is  destroyed,  and  it  becomes 
a  new  note.  It  is  this  last  note,  and  not  the  one  on  which  Miller  was  liable 
to  them,  which  they  indorse  to  Master.  As  Wilkinson  &  Cooke  hold  the 
promissory  note  of  Miller,  and  they  indorse  a  different  note  to  Master,  of 
course  Miller  is  not  liable  to  Master  on  either  note.  The  legal  relations  of 
the  parties  seem  to  be  thus  :  Wilkinson  &  Cooke  can  recover  from  Miller 
upon  the  note  dated  26ih  March,  if  they  can  prove  that  the  alteration  was 


716  smith's   leading  cases. 

not  marie  with  their  privity,  and  cannot  recover  unless  they  prove  that : 
Wilkinson  &  Cooke  have  given  to  Master,  a  bill  dated  20ih  March,  with 
the  name  of  an  acceptor  forged  upon  it  by  the  person  who  made  tlie  altera- 
tion, and  upon  this  note  they  are  liable  to  him.  The  decision  of  the  court 
upon  the  special  verdict,  which  found  as  a  fact  that  the  date  was  "altered" 
from  26th  March  to  20th  March,  is  certainly  the  only  decision  that  could  have 
been  given  :  and  Buller,  J.,  does  not  appear  to  have  differed  on  the  principle 
of  law;  but  he  attacks  \he  facts  of  the  special  verdict,  and  declares  that  the 
"alteration"  was  only  a  blot,  by  which  the  bill  was  disfigured,  but  not 
transformed  r  and  indeed  there  can  be  little  doubt  that  the  plaintiff  would 
be  entitled  to  recover  upon  such  a  state  of  facts  as  he  supposes  :  viz. where 
a  figure  was  changed  to.  the  eye,  but  was  understood  and  taken  by  both 
indorsor  and  indorsee  to  be  original  figure — 26  and  not  20.  In  accord- 
ance with  the  principles  here  noted,  there  can  be  no  doubt  that  if  the 
alteration  had  been  made  without  the  privity  of  the  indorsee,  after  the 
indorsement  and  delivery  to  Master,  Master  would  have  been  entitled  to 
recover. 

The  case  of  Bank  of  the  United  Stales  v.  Bussell  &  Boone,  3  Yeates, 
391,  is  similar  to  Master  v.  Miller,  and  was  decided  upon  its  authority;  the 
only  difference  being,  that  in  the  former  the  alteration  was  made  by  the 
indorser,  and  in  the  other,  its  being  made  while  the  note  was  in  the  hands 
of  the  indorser,  raised  a  presumption  against  him,  which  was  not  removed. 
The  plaintiffs  declared  on  two  notes  made  by  defendants  ;  one  dated  9th 
June,  the  other  dated  19th  June.  The  special  verdict  found  that  the  defen- 
dants made  their  note  dated  9th  June,  in  favour  of  J.  T.  or  order;  who 
altered  the  date  to  19ih  June;  and  discounted  it  with  the  plaintiff.  The 
court  decided  that  the  bank  could  not  recover  from  the  defendants  on  either 
notes.  The  opinion  of  the  majority  in  Woodworth  v.  Bank  of  America, 
19  Johnson,  391,  in  error,  involves  the  same  principle:  the  plaintiff,  for 
the  accommodation  of  the  maker,  indorsed  a  note  payable  to  himself,  and 
delivered  it  to  the  maker,  who  made  a  material  alteration  in  it,  and  discounted 
it  with  the  defendants:  the  majority  held,  that  even  without  reference  to 
the  error  in  giving  notice,  the  plaintiff  was  not  liable  to  the  bank.  In 
Nazro  &  Green  v.  Fuller  &  Patterson,  24  Wendell,  374,  a  similar  alteration 
by  payee  voided  the  note  in  the  hands  of  the  indorsee  against  the  maker; 
and  see  Haines  v.  Dennett,  11  New  Hampshire,  181, 

H.  B.  W. 


WAUGH     V.     CARVER.  717 


WAUGH  V.   CARVER,   CARVER  &   GIESLER. 


*C.  B.— MICH.— 34  GEO.  3.  [*49IJ 

[reported  2  H.  BL.  235.] 

A.  and  B.  ship-agents  at  different  port?,  enter  into  an  agreement  to  share,  in  certain 
proportions,  the  profits  of  tlieir  respective  commissions,  and  the  discount  on  tradesmen's 
bills  employed  by  them  in  repairing  the  ships  consigned  to  them,  &c.  By  this  agree- 
ment they  become  liable,  as  partners,  to  all  persons  with  whom  either  contracts  as  such 
agent,  though  the  agreement  provides  that  neither  shall  be  answerable  for  the  acts  or 
losses  of  the  other,  but  each  for  his  own. 

He  who  takes  the  general  profits  of  a  partnership,  must,  of  necessity,  be  made  liable  to 
the  losses. 

He  who  lends  his  name  as  a  partner,  becomes,  as  against  all  the  rest  of  the  world,  a 
partner. 

This  aclion  of  assumpsit  for  goods  sold  and  delivered,  work  and  labour 
done,  &c.,  was  tried  at  Guildhall,  before  the  Lord  Chief  Justice,  when  a 
verdict  was  found  for  the  plaintiff",  subject  to  the  opinion  of  the  court  on  a 
case  which  stated — 

That  on  the  24th  February,  1790,  the  defendants  duly  executed  articles 
of  agreement,  as  follows: — "Articles  of  agreement  indented,  made,  con- 
cluded, and  agreed  upon  this  twenty-fourth  day  of  February,  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  ninety,  between  Erasmus 
Carver  and  William  Carver,  of  Gosport,  in  the  county  of  Southampton, 
merchants,  of  the  one  part,  and  Archibald  Giesler  of  Plymouth,  in  the 
count}'-  of  Devon,  merchant,  of  the  other  part.  Whereas  the  said  Archibald 
Giesler,  some  time  since,  received  appointments  from  several  of  the  prin- 
cipal ship-owners,  merchants,  and  insurers  in  Holland,  and  other  places, 
to  act  as  their  agent  in  the  several  counties  of  Hampshire,  Devonshire, 
Dorsetshire,  and  Cornwall ;  and  whereas  the  said  Erasmus  Carver  and 
William  Carver  *have  for  a  great  number  of  years  been  established  r^^non 
at  Gosport  aforesaid,  in  the  agency  line,  under  the  firm  of  '-  -' 
Erasmus  Carver  and  Son,  and  hold  sundry  appointments  as  consuls  and 
agents  for  the  Danish  and  other  foreign  nations,  and  also  have  very  extensive 
connexions  in  Holland  and  other  parts  of  Europe  :  and  whereas  it  is  deemed, 
for  their  mutual  interest  and  the  advantage  of  their  friends,  that  the  said 
Archibald  Giesler  should  remove  from  Plymouth,  and  establish  himself  at 
Cowes,  in  the  Isle  of  Wight ;  and  the  said  Erasmus  Carver  and  William 
Carver,  and  the  said  Archibald  Giesler,  have  argeed  that  each  should  allow 
to  the  other  certain  portions  of  each  other's  commissions  and  profits,  in 
manner  hereafter  more  particularly  mentioned  and  expressed.  Now,  there- 
fore, this  agreement  witnesseth,  that  the  said  Archibald  Giesler  doth 
hereby  for  himself,  his  executors  and  administrators,  covenant,  promise, 
and  agree,  to  and  with  the  said  Erasmus  Carver  and  William  Carver, 
their  executors  and  assigns,  in  manner  following  (that  is  to  say,)  that 
the  said  Archibald  Giesler  shall  and  will,  when  required  so  to  do  by  the 


718  smith's     LEADING     CASES. 

said  Erasmus  Carver,  and  William  Carver,  remove  from  Plymouth  and 
establish  himself  at  Cowes  aforesaid,  for  the  purpose  of  carrying  on  a 
house  there  in  the  agency  line,  on  his  account;  but  in  consequence  of  the 
assistance  and  recommendations  which  the  said  Erasmus  Carver  and  Wil- 
liam Carver  have  agreed  to  render  in  support  of  the  said  house  at  Cowes, 
the  said  Archibald  Geisler  doih  covenant,  promise,  and  agree,  to  and  with 
the  said  Erasmus  Carver,  and  William  Carver,  that  the  said  Archibald 
Geisler,  his  executors,  administrators  and  assigns,  shall  and  will  well  and  truly 
pay  or  allow,  or  cause  to  be  paid  or  allowed  to  the  said  Erasmus  Carver 
and  William  Carver,  their  executors,  administrators,  or  assigns,  one  full 
moiety  or  half  part  of  the  commission  agency  to  be  received  on  all  such  ships 
or  vessels  as  many  arrive  or  put  into  the  port  of  Cowes,  or  remain  in  the 
road  to  the  westward  thereof  within  the  Needles,  of  which  the  said  Archi- 
bald Giesler  may  procure  the  address,  and  likewise  one  full  moiety  or  half 
part  of  the  discount  on  the  bills  of  the  several  tradesmen  employed  in  the 
repairs  of  such  ships  or  vessels  ;  and  as  there  have  been  for  a  considerable 
time  past,  very  general  complaints  made  abroad  of  the  malpractices  and 
impositions  that  have  prevailed  at  Cowes  aforesaid,  and  it  being  a  principal 
object  of  the  said  Erasmus  Carver  and  William  Carver  to  counteract  and 
-,  *prevent  such,  the  said  Archibald  Geisler  doth  further  covenant,  pro- 
L  -^  mise,  and  agree  to  and  with  the  said  Erasmus  Carver  and  William 
Carver,  that  he  the  said  Archibald  Giesler  shall  and^will  use  his  utmost 
tjiligence  and  endeavours  to  prevent  ships  or  vessels  arriving  at  the  east 
end  of  the  Isle  of  Wight,  from  being  carried  past  the  port  of  Portsmouth 
to  that  of  Cowes;  and  also  to  induce  the  mariners  or  commanders  of  such 
ships  or  vessels  as  may  come  in  at  the  west  end  of  the  island  through  the 
Needles,  whenever  it  is  practicable  or  advisable,  to  proceed  to  Portsmouth, 
and  there  put  themselves  under  the  direction  of  the  said  Erasmus  Carver 
and  William  Carver,  and  that  he  will  consult  and  advise  with  the  said 
Erasmus  Carver  and  William  Carver  on  and  respecting  the  affairs  of  such 
ships  or  vessels  as  may  put  into  and  remain  at  the  port  of  Cowes  under  the 
care  of  the  said  Archibald  Giesler,  and  pursue  such  measures  as  may  appear 
to  the  said  Erasmus  Carver  and  William  Carver  for  the  interest  of  the  con- 
cerned. And  whereas  one  of  the  causes  of  complaint  before  mentioned  is 
the  very  heavy  charge  made  at  Cowes,  for  the  use  of  warehouses  for  depo- 
siting the  cargoes  of  ships  or  vessels,  the  said  Archibald  Giesler  doth  also 
covenant,  promise  and  agree  to  and  with  the  said  Erasmus  Carver  and 
William  Carver,  that  they  the  said  Erasmus  Carver  and  William  Carver 
shall  be  at  full  liberty  to  engage  warehouses  at  Cowes  aforesaid,  on  such 
terms  and  in  such  manner  as  they  may  think  proper,  in  which  the  said 
Archibald  Giesler  shall  not  upon  any  grounds  or  pretence  whatsoever  either 
directly  or  indirectly  interfere.  And  the  said  Erasmus  Carver  and  Wil- 
liam Carver,  for  the  considerations  herein-before  mentioned,  do  hereby 
covenant,  promise  and  agree  to  and  with  the  said  Archibald  Giesler,  his 
executors  and  administrators,  that  they  the  said  Erasmus  Carver  and  Wil- 
liam Carver  shall  and  will  well  and  truly  pay  or  allow,  or  cause  to  be  paid 
or  allovved  to  the  said  Archibald  Giesler,  his  executors,  administrators,  or 
assigns,  three-fifth  parts  or  shares  of  the  commission  or  agency  to  be 
received  by  the  said  Erasmus  Carver  and  William  Carver,  on  account  of 
all  such  ships  or  vessels,  the  commanders  whereof  may,  in  consequence  of 


1VAUGH     V.     CARVER.  719 

the  endeavours,  interference,  or   influence  of  the   said  Archibald  Giesler, 
proceed  from   Cowes.  to  Portsmouth,  and  there   put  themselves  under  the 
direction  of  the  said  Erasmus  Carver  and 'William  Carver,  in  manner  here- 
in-before  mentioned,  and  likewise   one  and  one-half  *per  cent,  on  ^^^aq.-^ 
amount  of  the  bills  of  the  several  tradesmen  employed  in  the  repairs  L         -^ 
of  such  ships   or  vessels,  together  with  one   fourth  part  of  such  sum  or 
sums  as  may  be  charged  or  brought  into  account  for  warehouse  rent,  on 
the  cargoes  of  such  ships  or  vessels-  respectively  ;  and  also  one-sixth  part 
of  such  sum  or  sums  as  may  be  charged  or  brought  into  account  for  ware- 
house rent   on  the   cargoes   of  such  ships   or  vessels  as   may  be  landed  at 
Cowes  aforesaid  :   and  also  that  they  the  said  Erasmus  Carver  and  William 
Carver,  their  executors,  administrators  and  assigns,  shall  and  will  well  and 
truly  pay  or  allow,  or  cause  to  be  paid  or  allowed  unto  the  said  Archibald 
Giesler,  his  executors,  administrators  or  assigns,  one-fourlh  part  of  or  share 
of  the  commission  or  agency  to  be  received  by  the  said  Erasmus  Carver  and 
W^illiam  Carver,  on  account  of  all  such  ships  or  vessels  that  may  arrive  or 
put  into  the  i)ort  of  Portsmouth,  or  remain  in  the  limits  thereof,  under  the 
care  and  direction  of  the  said  Erasmus  Carver  and  William  Carver;  and 
likewise  one-half  per  cent,  on  amount  of  the  bills  of  the  several  tradesmen 
employed  in  the  repairs  of  such  ships  or  vessels  :  and  in  order  to  prevent 
any  misunderstanding  or  disputes,  with  respect  to  the  commission  and  dis- 
count to  be  paid  and  divided  between  the   said   Erasmus   Carver  and  Wil- 
liam Carver,  and  the  said  Archibald  Giesler,  and  for  the  better  ascertaining 
thereof,  it  is  hereby  mutually  covenanted,  declared  and  agreed  upon  between 
the   said  Erasmus  Carver  and  William  Carver,  and  the   said   Archibald 
Geisler,  that  one-fifih  part  of  the  commission  or  agency  on  each  ship  shall 
aind  may  be  first  retained  by  the  party  under  whose  care  such  ship  or  ves- 
sel shall  be,  as  a  full  compensation  for  clerks,  boat  hire,  and  all  other  inci- 
dental charges  and  expenses  in  regard  of  such  ships  or  vessels  respectively; 
after  which  deduction,  the  then  remaining  balance  of  such  commissions  or 
agency  shall  be   divided  between   the  said  Erasmus   Carver  and  William 
Carver,  and  the  said  Archibald  Giesler,  in  the  proportion  herein-before  men- 
tioned ;  and  that  such  commission  or  agency  shall  be  ascertained  by  one 
party's  producing  to  the  other  true  and  authentic  copies  of  the  general 
accounts  of  each  ship  or  vessel  under  their  respective  care  and  direction, 
signed  by  the   several  masters  of  such   ships   or  vessels   respectively,  and 
notarially  authenticated.      And  it  is   hereby  further  covenanted,  declared 
and  agreed  upon  by  and  between  the  said  Erasmus  Carver  and  William 
*Carver,  and  the  said  Archibald  Giesler,  that  this  present  contract  ^^^^0^-1 
and  agreement  shall  commence  and  take  effect  from  the  date  hereof  L         -^ 
and  shall  continue  in  full  force  and  virtue  for  the  term  of  seven  years,  during 
the  whole  of  which  said  term,  the  said  parties  or  either  of  them,  shall  not  upon 
any  grounds  or  pretence  whatsoever,  directly  or  indirectly,  enter  into  or  form 
any  connection,  contract,  or  agreement,  with  any  other  house  or  houses,  or 
with  any  person  or  persons  whatsoever, concerning  the  commission  or  agency 
of  ships  or  vessels,  that  may  during  the  said  term  put  into  or  arrive  at  either 
of  the  before-mentioned  ports  of  Portsmouth  or  Cowes,  nor  shall   the  said 
Archibald  Giesler,  at  the  expiration  of  the  said  term  of  seven  years,  directly 
or   indirectly,  establish    himself  at  Gosport    or    Portsmouth,    nor  on   any 
grounds  or  pretences  whatsoever,  enter  into  or  form  any  connection,  contract, 


720  smith's   leading   cases. 

or  agreement  with  any  house  or  houses,  person  or  persons  whomsoever  al  Gos- 
port  or  Portsmouth  aforesaid.  And  also  that  they  the  said  Erasmus  Carver  and 
William  Carver,  and  the  said  Archibald  Giesler,  shall  and  will  meet  at  Gos- 
port  on  or  about  the  first  day  of  September  yearly,  for  the  purpose  of  examin- 
ing and  settling;  their  accounts,  concerning  the  said  commission  business,  and 
that  such  party  from  whom  the  balance  shall  then  appear  to  be  due,  shall  and 
will  well  and  truly  pay  or  secure  the  same  unto  the  other  party,  his  executors, 
administrators,  or  assigns,  on  or  before  the  twenty-ninth  day  of  the  said'month 
of  September  yearly,  and  it  is  hereby  likewise   covenanted,  declared,  and 
agreed,  by  and  between  the  said  Erasmus  Carver  and  William  Carver,  and 
the  said  Archibald  Geisler,  that  each  party  shall  separately  run  the  risk  of, 
and  sustain  all  such  loss  and  losses  as   may  happen  on   the  advance   of 
moneys  in  respect  of  any  ships  or  vessels  under  the  immediate  care  of  either 
of  the  said  parties  respectively  ;  it  being  the  true  intent  and  meaning  of 
these  presents,  and  of  the  parties  hereunto,  that  neither  of  them,  the  said 
Erasmus  Carver  and  William  Carver  and  Archibald  Geisler,  shall  at  any 
time  or  times,  during  the  continuance  of  this   agreement,  be  in  anywise 
injured,  prejudiced,  or  affected  by  any  loss  or  losses  that  may  happen  to  the 
other  of  them,  or  that  either  of  them  shall  in  any  degree  be  answerable  or 
accountable   for  the  acts,  deeds,  or  receipts  of  the  other  of  them,  but  that 
each  of  them,  the  said  Erasmus  Carver  and  William  Carver  and  Archibald 
Geisler,  shall  in   his  *own  person,  and  with   his  own  goods  and 
L         -I  effects  respectively  be   answerable  and  accountable   for  his  own 
losses,  acts,  deeds  and  receipts.     Provided  always,  nevertheless,  and  it  is 
hereby  declared  and  agreed  to  be  the  true  intent  and  meaning  of  these  pre- 
sents, and  the  parties  hereunto,  that  in  case  the  houses  of  either  of  them, 
the  said  Erasmus  Carver  and  William  Carver  and  Archibald  Geisler  shall 
dissolve  or  cease  to  exist,  from  any  circumstance  whatsoever,  before  the 
expiration  of  the  said  term  of  seven  years,  that  then  this  present  agreement, 
and  every  clause,  sentence,  and  thing  herein  contained,  shall  from  thence 
cease,  determine,  and  be  absolutely  void,  to  all  intents  and  purposes  what- 
soever ;  but  without  prejudice  nevertheless  to  the  settlement  of  any  accounts 
that  may  then  remain  open  and   unliquidated,  between  the   said  Erasmus 
Carver  and  William  Carver,  and  the  said  Archibald  Geisler,  which  shall 
be  settled  and  adjusted  within  the  space  of  six  months  next  after  the  disso- 
lution of  the  houses  of  either  of  them  the  said  Erasmus  Carver  and  William 
Carver,  and  Archibald  Geisler  ;  and  also  that  at  the  expiration  of  the  said 
term  of  seven  years,  it  shall  be  at  the  option  of  the  said  Erasmus  Carver  and 
William  Carver  to  renew  this  agreement  for  the  further  term  of  seven  years, 
under  and  subject  to  the  several  clauses,  covenants,  and  agreements  herein- 
before particularly  mentioned  and  set  forth,  which  the  said  Archibald  Geis- 
ler doth  hereby  engage   to  do.     And   it   is    hereby   further  covenanted, 
declared  and  agreed,  by  and  between  the  said  Erasmus  Carver  and  William 
Carver,  and  Archibald  Geisler,  that  these  presents  do  not,  nor  shall  be  con- 
strued to  mean  to  extend  to  such  ships  or  vessels  that  may  come  to  the 
address  of  either  of  the  said  parties  respectively,  for  the  purpose  of  loading 
or  delivering  any  goods,  wares,  or  merchandise,  it  being  the  true  intent  and 
meaning  of  these  presents,  and  the  parties  hereunto,  that  the  foregoing  arti- 
cles shall  not,  nor  shall  be  construed  to  bear  reference  to  their  particular  or 
separate  mercantile  concerns  or  connectioas  ;  and  that  in  case  any  disputes 


WAUGH     V.       CARVER.  721 

or  misunderstanding  shall  hereafter  arise  between  them,  respecting  the  true 
intent  and  meaning  of  any  of  the  articles  and  covenants  herein-before  con- 
tained, that  then  such  disputes  or  misunderstandings  shall  be  submitted  to 
the  arbitration  of  two  indifferent  persons,  one  to  be  chosen  by  the  said 
Erasmus  Carver  and  William  Carver,  and  the  other  by  the  said  Archibald 
Geisler  ;  and  in  case  such  two  persons  cannot  *agree  about  the  1-^^07-1 
same,  then  they  are  hereby  empowered  to  name  some  third  person,  L  J 
as  an  umpire  ;  and  it  is  hereby  declared  and  agreed,  that  the  award  and 
determination  of  the  said  referees  and  umpire,  or  any  two  of  them,  concern- 
ing the  object  in  dispute  shall  be  made  and  settled  six  calendar  months  next 
after  such  differences  shall  have  arisen  between  the  said  parties,  and  shall 
be  absolutely  final,  conclusive  and  binding.  And  lastly,  for  the  true  per- 
formance of  all  and  every  the  covenants,  articles  and  agreements  herein- 
before mentioned,  they  the  said  Erasmus  Carver  and  William  Carver  and 
Archibald  Geisler,  do  hereby  bind  themselves,  their  heirs,  executors  and 
administrators,  each  to  the  other,  in  the  penalty  of  five  thousand  pounds  of 
lawful  money  of  Great  Britain,  firmly  by  these  presents." 

In  pursuance  of  these  articles,  Geisler  removed  frona  Plymouth  and 
settled  at  Cowes,  where  he  carried  on  the  business  of  a  ship-agent,  in  his 
own  name,  and  contracted  for  the  goods,  &c.,  which  were  the  subject  of 
the  action. 

And  the  question  was,  Whether  the  defendants  were  partners  on  the  true 
construction  of  the  articles  ? 

This  was  argued  in  Trinity  term  last,  by  Clayton,  Serjt.,  for  the  plain- 
tiff, and  Rooke,  Serjt.,  for  the  defendants  ;  and  a  second  time  in  the  pre- 
sent term  by  Le  Blanc,  Serjt.,  for  the  plaintiff,  and  Lawrence,  Serjt.,  for 
the  defendants.  The  substance  of  the  arguments  for  the  plaintiffs  was  as 
follows : 

The  question  in  this  case  is,  Whether  the  articles  of  agreement  entered 
into  by  the  defendants  constituted  a  partnership  between  them  ?  That 
such  was  the  effect  of  these  articles  will  appear  by  considering  the  general 
rules  of  law  respecting  partners,  and  the  particular  circumstances  in  the 
case.  The  law  is,  that  wherever  there  is  a  participation  of  profits  a  part- 
nership is  created  ;  though  there  is  a  difference  between  a  participation  of 
profits  and  a  certain  annual  payment.  Thus  in  Grace  v.  Smith,  2  Black. 
998,  a  retiring  partner  lent  the  other  who  continued  in  business  a  certain  sum 
of  mone}'^  at  5/.  per  cent,  and  was  to  have  an  annuity  of  300/.  a  year  for 
seven  years,  the  whole  of  which  was  secured  by  the  bond  of  the  partner 
who  remained  in  trade.  This  was  holden  not  to  make  the  lender  a  partner  ; 
but  Chief  Justice  De  Grey  there  said — "The  question  is.  What  constitutes  a 
secret  partner  ?  Every  man  who  has  a  share  of  the  profits  of  a  trade  ought 
also  to  bear  his  share  of  *the  loss ;  and  if  any  one  takes  part  of  the  p^^q^-. 
profits,  he  takes  a  part  of  that  fund  on  which  the  creditor  of  the  L  J 
trader  relies  for  his  payment.  I  think  the  true  criterion  is,  to  inquire 
whether  Smith  agreed  to  share  the  profits  of  the  trade  with  Robinson  ;  or 
whether  he  only  relied  on  those  profits  as  a  fund  for  payment?"  And 
Blackstone,  J.,  also  said — »  The  true  criterion,  when  money  is  advanced  to 
a  trader,  is  to  consider  whether  the  profit  or  premium  is  certain  and  defined, 
or  casual  and  indefinite,  and  depending  on  the  accidents  of  trade.     In  the 

Vol.  I 46 


723  smith's   leading   cases. 

former  case  it  is  a  loan,  in  the  latter  a  partnership."  In  Bloxatn  v.  Pell, 
cited  in  Grace  v.  Smith,  a  sum  secured  with  interest  on  bond,  and  also  an 
agreement  for  an  annuity  of  200/.  a  year  for  six  years,  if  Brooke  so  long 
lived,  as  in  lie«a  of  the  profits  of  the  trade,  with  liberty  to  inspect  the  books, 
was  holden  by  Lord  Mansfield  to  constitute  a  partnership.  On  Hoare  v. 
Dawes,  Dougl.  371,  8vo.,  a  number  of  persons  unknown  to  each  other,  and 
without  any  communication  together,  employed  the  same  broker  to  pur- 
chase tea  at  a  sale  of  the  East  India  Company.  The  broker  bought  a  lot, 
to  be  divided  among  them  according  to  their  respective  orders,  and  pledged 
the  warrants  with  the  plaintiff,  for  more  money  than  they  turned  out  to 
be  worth  ;  on  the  broker  becoming  a  bankrupt,  the  plaintiff  sued  two  of 
the  purchasers,  considering  them  all  as  secret  partners,  and  liable  for  the 
whole.  But  the  court  held  there  was  no  partnership,  and  Lord  Mansfield 
said — "  There  is  no  undertaking  by  one  to  advance  money  for  another,  nor 
any  agreement  to  share  with  one  another  in  the  profit  or  loss."  In  Coope 
V.  Eyre,  1  H.  Bl.  p.  37,  one  of  the  defendants  bought  a  quantity  of  oil  of 
the  plaintiffs,  and  the  other  defendants  had  agreed,  before  the  purchase, 
each  to  take  certain  shares  of  the  quantity  bought ;  but,  when  bought,  each 
to  do  with  his  own  share  as  he  pleased  ;  they  were  holden  not  to  be  parlnerr, 
for  there  was  no  share  of  profit  or  loss.  In  Young  v.  Axtell  and  another,(a) 
which  was  an  action  to  recover  600/.  and  upwards  for  coals  sold  and  delivered 
by  the  plaintiff,  a  coal-merchant,  an  agreement  betAveen  the  defendants  wa3 
given  in  evidence,  stating  that  the  defendant  Mrs.  Axtell  had  lately  carried  on 
the  coal  trade,  and  that  the  other  defendant  did  the  same :  that  Mrs.  Axtell  was 
r  /iQOi  ^°  bring  what  customers  she  could  into  the  business,  and  that  the 
L  J  other  was  to  pay  her  an  annuil}^  and  also  2s.  for  *every  chaldron 
that  should  be  sold  to  those  persons  who  had  been  her  customers,  or  were 
of  her  recommending.  The  plaintiff  also  proved,  that  bills  were  made  out 
for  goods  sold  to  her  customers  in  their  joint  names  ;  and  the  question  was, 
Whether  Mrs.  Axtell  was  liable  for  the  debt;  Lord  Mansfield  said,  "  he 
should  have  rather  thought  on  the  agreement  only,  that  Mrs.  Axtell  would 
be  liable,  not  on  account  of  the  annuity,  but  the  other  payment,  as  that 
would  be  increased  in  proportion  as  she  increased  the  business.  However, 
as  she  suffered  her  name  to  be  used  in  the  business,  and  held  herself  out 
as  a  partner,  she  was  certainly  liable,  though  the  plaintiff  did  not,  at  the 
time  of  dealing,  know  that  she  was  a  partner,  or  that  her  name  was  used, "(6) 
And  the  jury  accordingly  found  a  verdict  for  the  plaintiff. 

It  appearing  therefore,  from  these  authorities,  that  a  participation  of 
profits  is  sufficient  to  constitute  a  partnership,  it  remains  to  be  seen  whe- 
ther the  agreement  in  question  did  not  establish  such  a  participation  of  the 
profits  of  the  agency  business  between  the  defendants  as  to  make  them 
liable  as  partners.  In  the  first  place,  it  is  stated  in  the  recital,  that  the 
Carvers  and  Giesler  had  agreed  to  allow  each  other  certain  proportions  of 
each  other's  commissions  and  profits.  It  is  then  agreed,  that  Giesler  should, 
when  required  by  the  Carvers,  remove  from  Plymouth  to  Cowes,  and  there 
establish  a  house  :  and  in  consequence  of  Carver's  recommendation  and 

(a)  At  Guildhall  sittings  after  Hil.  24  Geo.  3,  cor.  Lord  Mansfield,  cited  by  Mr.  Serjt. 
Le  Blanc,  from  a  MS.  note. 
(/>)  Scd  quaere  ;  vide  the  expressions  of  Parke,  J.,  in  Dickenson  v.  Valpy,  10  B.  &,  C.  140. 


W  A  r  G  H    V.     CARVER.  723 

assistance  to  support  the  house,  Giesler  is  to  allow  them  a  moiety  of  the 
commission  on  ships 'putting  into  the  port  of  Cowes,  or  remaining  in  the 
road  to  the  westward,  addressed  to  him,  and  a  moiety  of  the  discount  on  the 
tradesmen's  bills  employed  on  such  ships  :  he  also  covenants  to  advise  with 
the  Carvers  and  pursue  such  measures  as  may  appear  to  them  to  be  for  the 
interest  of  the  concerned.  On  the  other  hand  the  Carvers  agreed  to  pay 
Giesler  three-fifths  of  the  agency  of  all  vessels  which  shall  come  from  Cowes 
to  Portsmouth,  and  put  themselves  under  the  direction  of  the  Carvers,  by 
the  recommendation  of  Giesler,  one-half  per  cent,  on  tradesmen's  bills,  and 
certain  proportions  of  warehouse  rent  and  agency.  Each  party  is  likewise 
to  produce  true  copies  of  the  accounts  of  the  ships  to  the  other,  and 
neither  is  to  form  any  connection  in  the  agency  business  during  the  period 
agreed  upon;  and  they  are  to  meet  once  a  year  at  Gosport  to  settle  their 
mutual  accounts,  and  *pay  over  the  balance.  Now  it  was  not  ps^ool 
possible  to  express  in  clearer  terms  an  agreement  to  participate  in  L 
the  profits  of  the  business  of  ship-agents,  and  to  establish  a  joint  concern 
between  the  two  houses.  It  may  be  objected,  that  there  is  a  proviso,  that 
neither  of  the  parlies  shall  be  answerable  for  the  losses  of  the  other;  but 
this  would,  certainly  be  not  binding  on  the  creditors.  Lord  Craven  v. 
Widdows,  2  Chanc.  Cas.  139  ;  Heath  v.  Percival,  1  Pr.  Wms.  682  ;  Rich 
V.  Coe,  Cowp.  636.  An  agreement  to  share  profits  alone,  cannot  prevent 
the  legal  consequence  of  also  sharing  losses,  for  the  benefit  of  creditors. 
Perhaps  it  may  be  difficult  to  find  an  exact  definition  of  a  partnership,  but 
it  has  been  always  holden,  and  where  there  is  a  share  of  profits,  there  shall 
also  be  a  share  of  losses  ;  for  whoever  takes  a  part  of  the  capital,  or  of  the 
profits  upon  it,  takes  a  part  of  that  fund  to  which  the  public  have  given 
credit,  and  to  which  they  look  for  payment.  If  there  be  no  original  capital, 
the  profits  of  the  trade  are  themselves  a  capital,  to  which  the  creditor  is  to 
have  recourse.  Thus,  if  in  the  year  1791  the  profits  were  100/.,  and  in  the 
year  1792  there  was  a  loss  of  10/,,  of  course  the  profits  of  the  preceding 
year  would  be  the  stock  to  which  the  creditor  would  resort  for  the  payment 
of  the  debts  which  constituted  part  of  the  loss  of  the  succeeding  year. 
Indeed  it  is  by  no  means  necessary  that,  to  constitute  a  partnership,  the 
parties  should  advance  money  by  way  of  capital;  many  joint  trades  are 
carried  on  without  any  such  advance  :  there  is  therefore  no  ground  to 
object,  in  the  present  instance,  that  neither  party  brought  any  money  into  a 
common  stock,  in  order  to  carry  on  their  business. 

On  behalf  of  the  defendants,  the  arguments  were  as  follow  :  The  ques- 
tion is.  Whether  this  agreement  creates  such  a  partnership  as  to  make  all 
liable  to  the  debts  of  each  ?  A  partnership  may  be  defined  to  be,  "  the  rela- 
tion of  persons  agreeing  to  join  stock  or  labour,  and  to  divide  the  profits." 
Thus  Puffendorf  described  it,  "Contractus  societatis  est,  quo  duo  pluresve 
inter  se  pecuniam,  res,  aut  operas  conferunt,  eo  sane,  ut  quod  inde  redit 
lucri  inter  singulos  pro  rata  dividatur,"  lib.  5,  cap.  8.  Partners,  therefore, 
can  only  be  liable  on  the  ground  of  their  being  joint  contractors,  or  as  par- 
taking of  a  joint  stock.  In  many  cases,  in  which  questions  of  this  sort  have 
arisen,  and  the  persons  have  been  holden  to  be  partners,  goods  had  been 
sold,  and  a  common  "fund  established,  to  which  the  creditor  might  pgQj-. 
look  for  payment ;  and  there  it  was  highly  reasonable  to  hold,  that  L  J 
if  many  persons  purchase  goods  on  their  joint  account,  though  in  the  name 


724  smith's   leading   cases. 

of  one  only,  and  are  to  share  the  profits  of  a  re-sale,  they  shall  be  considered 
as  joint  contractors,  and  therefore  liable  as  partners.  So  if  a  joint  slock  or 
capital  or  joint  labour  be  employed,  each  party  is  interested  in  the  thing  on 
which  it  is  employed,  and  in  the  profits  resulting  from  it.  But  in  the  pre- 
sent case,  there  is  no  joint  contract  for  the  purchasing  goods,  nor  any  joint 
stock  or  labour,  but  the  parlies  are  to  share,  in  certain  proportions,  the  profits 
of  their  separate  slock,  and  separate  labour  :  there  was  no  house  of  trade  or 
merchandise  established,  but  two  distinct  houses,  for  the  purpose  of  carry- 
ing on  the  business  of  ship  agency,  on  two  distinct  accounts.  The  profits 
are  not  a  capital,  unless  carried  on  as  capital,  and  not  divided.  Ship  agents 
are  not  traders,  but  their  employment  is  merely  to  manage  the  concerns  of 
such  ships  in  port  as  are  addressed  to  them.  Suppose  two  fishermen  were 
to  agree  to  share  the  profits  of  the  fish  that  each  might  catch,  one  would 
not  be  liable  for  mending  the  nets  of  the  other.  So  if  two  watermen  agree 
to  divide  their  fares,  neither  would  be  answerable  for  repairing  the  other's 
boat.  Nor  would  any  artificers  who  entered  into  similar  agreements  to 
share  the  produce  of  their  separate  labour  be  obliged  to  pay  for  each  other's 
tools  or  materials.  And  this  is  not  an  agreement  as  to  the  agencj^  of  all 
ships  with  wliich  the  parlies  were  concerned,  for  such  as  came  to  the  parti- 
cular address  of  one  were  to  be  the  sole  profit  of  that  one..  It  was  indeed 
clearly  the  intent  of  the  parties  to  the  agreement,  and  is  so  expressed,  that 
neither  should  he  answerable  for  the  losses,  acts  or  deeds  of  the  other,  and 
that  the  agreement  should  not  extend  to  their  separate  mercantile  concerns. 
It  must  therefore  be  a  strong  and  invariable  rule  of  law  that  can  make  the 
parties  to  the  agreement  responsible  for  each  other,  against  their  express 
intent.  But  all  cases  of  partnership  which  have  been  hitherto  decided  have 
proceeded  on  one  or  other  of  the  following  grounds  :  1.  Either  there  has 
been  an  avowed  authority  given  to  one  party  to  contract  for  the  rest.  2.  Or 
there  has  been  a  joint  capital  or  slock.  3.  Or,  in  cases  of  dormant  partners, 
there  has  been  an  appearance  of  fraud  in  holding  out  false  colours  to  the 
r*nno1  "^"^'^'''d-  *No\v  the  present  case  is  not  within  either  of  these  prin- 
L  -^  ciples  :  because  there  was  no  authority  given  to  either  party  to 
contract  for  the  others  ;  nor  was  there  any  joint  capital  or  stock  ;  nor  were 
the  public  deceived  by  any  false  credit;  no  fraud  is  stated  or  attempted  to 
be  proved,  nor  can  the  court  collect  from  the  articles  that  any  was  intended  ; 
it  was  merely  a  purchase  of  Giesler's  profits  by  giving  him  a  share  of  those 
of  the  Carvers,  to  prevent  a  competition  between  them. 

Lord  Chief  Justice  Eyre. — This  case  has  been  extremely  well  argued, 
and  the  discussion  of  it  has  enabled  me  to  make  up  my  mind,  and  removed 
the  only  difficulty  I  felt,  which  was,  whether,  by  construing  this  to  be  a 
partnership,  we  should  not  determine,  that  if  there  was  an  annuity  granted 
out  of  a  banking-house,  to  the  widow,  for  instance,  of  a  deceased  partner,  it 
would  make  her  liable  to  the  debts  of  the  house,  and  involve  her  in  a  bank- 
ruplcj'  ?     But  I  think  this  case  will  not  lead  to  that  consequence. (t) 

The  definition  of  a  partnership  cited  from  Puffendorf  is  good  as  between 
the  parties  themselves,  but  not  with  respect  to  the  world  at  large.  If  the 
question  were  between  A.  and  B.,   whether  they  were  partners  or  not,  it 

(t)  Provided  the  annuity  be  not  dependent  on  the  profits  of  the  business.  Bloxara  v. 
Pell,  2  W.  Bl.  9'J9  ;  Ex  parte  Wheeler,  Buck,  48. 


WAUGH     V.     CARVER.  725 

would  be  very  well  to  inquire,  whether  they  had  contributed,  and  in  what 
proportions,  stocic  or  labour,  and  on  what  agreements  they  were  to  divide  the 
profits  of  that  contribution.     But  in  all  these  cases  a  very  difierent  question 
arises,  in  which  the  definition  is  of  little  service.  The  question  is  generally, 
not  between  the  parties,  as  to  what  shares  they  shall  divide,  but  respecting 
creditors,  claiming  a  satisfaction  out  of  the  funds  of  a  particular  house,  who 
shall  be  deemed  liable  in   regard  to  these  funds.     Now  a  case  may  be  stat- 
ed, in  which  it  is   the  clear  sense  of  the   parlies  to  the  contract,  that  they 
shall  not  be  partners  ;  that  A.  is  to  contribute  neither  labour  nor  money,  and, 
to  go  still  farther,  not  to  receive  any  profits.      But  if  he  will  lend  his  name 
as  a  partner,  he  becomes,  as  against  all  the  rest  of  the  world,  a  partner,  not 
upon  the  ground  of  the  real  transaction  between  them,  but  upon  principles  of 
general  policy,  to  prevent  the   frauds  to  which  creditors  would  be  liable  if 
they  were  to  suppose  that  they  lent  their  money  upon  the  apparent  credit 
of  three  or  four  persons,  when  in   fact  they  lent  ft  only  to  two  of  them,  to 
whom,  without  the  others,  they  *would  have   lent  nothing.     The  p.^gosl 
argument  gone  into,  however  proper  for  the  discussion  of  the  ques-  L 
tion,  is  irrelevant  to  a  great  part  of  the  case.      Whether  these  persons  were 
to  interfere  more  or  less,  with  their  advice  and  directions,  and  many  small 
parts  of  the  agreement,  I  lay  entirely  out  of  the  case  ;  because  it  is  plain 
upon  the  construction  of  the  agreement,  if  it  be  construed  between  the  Car- 
vers and  Giesler,  that  they  were  not,  nor  ever  meant  to  be,  partners.  They 
meant  each  house  to  carry  on  trade,  without  risk  of  each  other,  and  to  be  at 
their  own  loss.     Though  there  was  a  certain  degree  of  control  at  one  house, 
it  was  without  an  idea  that  either  was  to  be  involved  in  the  consequences  of 
the  failure  of  the  other,  and  without  understanding  themselves  responsible 
for  any  circumstances  that  might   happen  to  the  loss  of  either.     That  was 
the  agreement  between  themselves.     But   the  question  is,  whether  they 
have  not  by  parts  of  their  agreements  constituted   themselves  partners  in 
respect  to  the  other  persons  ?     The  case  therefore  is  reduced  to  the  single 
point,  whether  the  Carvers  did  not  entitle  themselves,  and  did  not  mean  to 
take  a  moiety  of  the  profits  of  Giesler's  house,  generally  and  indefinitely  as 
they  should  arise,  at  certain  times  agreed   upon  for  the  settlement  of  their 
accounts.     That  they  have  so  done,  is  clear  upon  the  face  of  the  agreement : 
and  upon  the  authority  of  Grace   v.   Smith,  2  Black.   998,  he  who  takes  a 
moiety  of  all  the   profits  indefinitely,  shall,  by  operation  of  law,  be  made 
liable  to  losses,  if  losses  arise;  upon  the  principle  that,  by  taking  a  part  of 
the  profits,  he  takes  from  the  creditors  a  part  of  that  fund  which  is  the  pro- 
per security  to  them  for  the  payment  of  their  debts.     That  was  the  founda- 
tion of  the  decision  in  Grace  v.  Smith,  and  I  think  it  stands  upon  the  fair 
ground  of  reason.      I  cannot  agree  that  this  was  a  mere  agency,  in  the  sense 
contended  for  on  the  part  of  the  defendants,  for  there  was  a  risk  of  profit 
and  loss :  a  ship  agent  employs  tradesmen  to  furnish  necessaries  for  the 
ship  ;  he  contracts  with  them  and  is  liable  to  them  ;  he  also  makes  out  the 
bills  in  such  a  way  as  to  determine  the  charge  of  cornmission  to  the  ship- 
owners.    With  respect  to  the  commission,  indeed,  he  may  be  considei'ed  as 
a  mere  agent;   but,  as  to  the  agency  itself,  he  is  as  much  a  trader  as  any 
other  man,  and  there  is  as  much  risk  of  profit  and  loss  to  the  person  with 
whom  he  contracts,  in  the  transactions  with  him,  *as  with  any  other  r-.^rnA-^ 
trader.      It  is  true  he  will  cain  nothinof  but  his  discount,  but  that  is  L         J 


726 


SMITH     S     LEADING     CASES. 


a  profit,  in  the  trade,  and  there  may  be  losses  to  him,  as  well  as  to  the  owners. 
If  therefore  the  principle  be  true,  that  he  who  takes  the  general  profits  of  a 
partnership  must  of  necessity  be  made  liable  to  the  losses,  in  order  that  he 
may  stand  in  a  just  situation  with  regard  to  the  creditors  of  the  house,  then 
,  this  is  a  case  clear  of  all  difficulty.     For  though,  with  respect  to  each  other, 

v  these  persons  were  not  to  be  considered  as  partners,  yet  they  have  made 
themselves  such,  with  regard  to  their  transactions  with  the  rest  of  the 
world.  I  am  therefore  of  opinion  that  there  ought  to  be  judgment  for  the 
plaintiff. 

Gould,  J. — I  am  of  the  same -opinion. 
Heath,  J. — I  am  of  the  same  opinion. 

Hook,  J.,  having  argued  the  case  at  the  bar,  declined  giving  any  opinion. 

Judgment  for  the  plaintiff. (o) 


Pautnersitip  is  either  actual  or  nom- 
inal. Actual  partnership  takes  place 
when  two  or  more  persons  agree  to 
combine  property  or  labour,  or  both,  in 
a  common  undertaking,  sharing  profit 
and  loss.  "  I  have  always,"  says  Tin- 
dal,  C.  J.,  in  Green  v.  Beesley,  2  Bing. 
N.  C.  112,  "understood  tlie  definition 
of  partnership  to  be  a  mutual  participa- 
tion in  profit  and  loss." 

Bnt,  with  respect  to  tliird  persons,  an 
actual  partnership  is  considered  by  the 
law  to  subsist  wherever  there  is  parti- 
cipation in  the  profits,  even  though  the 
participant  may  have  most  expressly 
stipulated  against  the  usual  incidents  to 
that  relation.  (See  Bond  v.  Pittard,  3 
Mt-e  &  Welsh.  357.)  Such  stipula- 
tions will  indeed  hold  good  between 
himself  and  his  companions,  but  will  in 
110  wise  diminish  his  liability  to  third 
persons.  And  this  is  founded  on  a  prin- 
ciple of  justice  to  the  community  :  for, 
to  tise  the  language  of  the  L.  C.  J.  in 
the  principal  case,  by  taking  part  of 
the  profits  he  takes  from  the  creditors  a 
part  of  that  fund  which  is  the  proper 
security  to  them  for  the  payment  of  tlieir 
debts.  See  Cheap  v.  Cramond,  4  B.  & 
A.  663;  Exp.  Wheeler,  Buck,  48;  Hoare 
V.  Dawes,  i)ongl.  371.  Nor  does  it  sig- 
nify whether  he  receive  them  for  his 
own  benefit  or  as  trustee  for  others, 
since  the  mischief,  to  the  creditors  would 
be  the  same  if  he  were  to  be  exempt 
from  liabdity  in  either  case.  Wight- 
man    v.    Tovvnroe,    1    M.    &    S.    412. 


Equally  indifferent  is  it  whether  his 
sliare  be  large  or  small.  Rex  v.  Dodd, 
9  East,  .527.  In  Hoare  v.  Dawes,  Dougl. 
371,  Lord  Mansfield  gives  another  rea- 
son for  holding  one  who  has  placed 
money  in  the  firm,  and  is  to  receive  part 
of  the  profits,  liable,  viz.  that  he  would 
otherwise  receive  usurious  interest  with- 
out risk. 

On  the  above  principles  it  is  that  a 
dormant  partner,  i.  e.  a  partner  whose 
name  does  not  appear  to  the  world  as 
part  of  the  firm,  is  held  responsible  for 
its  engagements  even  to  those  who, 
when  they  contracted  with  the  firm, 
were  ignorant  of  his  existence.  Exp. 
Cellar,  Rose,  297  ;  Wintle  v.  Crowther, 
1  C.  &  P.  316,  1  Tyrwh.  210;  Robin- 
son  v.  Wilkinson,  3  Price,  538.  In  one 
respect,  however,  there  exists  very  con- 
siderable difference  ^between  r:i:rnc-i 
the  liabilities  of  an  ostensible  ^  -• 
partner  and  those  of  a  dormant  one  ; 
for  the  liability  of  a  partner  who  has 
appeared  in  the  firm,  in  respect  of  the 
acts  and  contracts  of  his  copartners, 
continues  even  after  the  dissolution  of 
the  partnership  and  the  removal  of  his 
name  therefrom,  until  due  notice  has 
been  given  of  such  dissolution.  See 
Parkins  v.  Carruthers,  3  Esp.  248 ; 
Graham  v.  Hope,  Peake,  1.54.  And 
though,  as  far  as  the  public  at  large 
are  concerned,  notice  in  the  Gazette  is 
held  sufhcient  for  this  purpose,  Godfrey 
v.  Turnbull,  1  Esp.  371  ;  Wrightson  v. 
Pullan,  1  Stark.   375;  yet,  to  persons 


(a)  See  Coope  v.  Eyre,  1  H.  BI.  p.  37,  and  tlic  note  tliere. 


WAUGH     V.     CARVER. 


727 


who  have  dealt  with  the  firm,  more  spe- 
cific information  must  be  given.  Kir- 
wan  V.  Kirwan,  4  Tyrvvii.  491,  And 
tiiis  is  rrenerally  effected  by  circulars. 
See  Newsonie  v.  Coles,  2  Campb.  617; 
Jenkins  v.  Blizard,  1  Stark.  418.  But 
if  a  fair  presumption  of  actual  notice 
can  be  raised  from  other  circumstances, 
that  will  be  sufficient.  M'lver  v.  Hum- 
ble, 16  East,  109.  Thus,  a  change  in 
the  wording  of  checks  has  been  held 
notice  to  a  party  using  them.  Barfoot 
V.  Goodall,  3  Camp.  147. 

It  has  been  said  that  a  participation 
in  the  profits  constitutes  a  partnership. 
But  the  participation  must  be  that  of  a 
person  having  a  right  to  a  share  of  the 
profits,  and  to  an  account  in  order  to 
ascertain  his  share,  not  that  of  a  mere 
servant  or  agent  receiving,  in  respect 
of  his  wages,  a  sum  proportioned  to  a 
share  of  the  profits,  or  which  may  be 
partly  furnisiied  out  of  the  profits.  The 
distinctions  on  this  subject  run  so  fine, 
that  it  will  not  be  uninteresting  briefly 
to  review  the  principal  cases,  and  en- 
deavour to  extract  from  them  some  rules 
for  ascertaining  wiien  a  particular  con- 
tract falls  under  the  head  o[' ■partnership, 
when  under  that  of  agency  or  service. 
In  Dixon  v.  Cooper,  3  Wils.  40,  in  an 
action  for  goods  sold  and  delivered,  the 
plaintifl^,  in  order  to  prove  the  delivery, 
called  his  factor  who  was  to  receive  a 
shilling  in  the  pound  upon  the  price: 
he  was  held  competent.  It  should  be 
observed  on  this  case,  that  though  the 
factor  would  have  incidentally  come  in 
for  a  sliare  of  the  profits  arising  from 
the  sale,  yet  he  did  not,  like  a  partner, 
depend  ibr  his  remuneration  upon  the 
contingency  of  profits  accruing,  since, 
as  his  commission  was  calculated  upon 
the  price,  he  would  have  been  entitled 
to  it  even  had  no  profits  been  obtained  ; 
and  this  very  distinction  has  been  acted 
on  in  Dry  v.  Boswell,  1  Camp.  329, 
where  it  was  held  that  an  agreement 
that  A.  should  work  B.'s  lighter,  and 
that  they  should  sliare  the  projils,  con- 
stituted a  partnership;  but  an  agree- 
ment that  A.  should  receive  half  her 
gi'oss  earnings  only  rendered  him  B.'s 
agent  for  the  purpose  of  working  her. 
The  case  of  Benjamin  v.  Porleus,  2  H. 
Blackst.  590,  w'ent  somewhat  tJirther. 
There,  in  an  action  for  the  price  of  in- 
digo, sold  at  three  shillings  per  pound, 
the  broker  being  called  to  prove  the 
contract,  staled  on  tlie  voir  dire,  that  he 
was  to  have  all  that  he  could  £.et  for  the 


indigo  above  half-a-crown  per  pound, 
instead  of  the  usual  commission  on  the 
price:  Eyre,  C.  J.,  rejected  liim  as  in- 
competent, and  directed  a  nonsuit, 
which  was,  however,  set  asi<le  by  the 
Court  of  Common  IMeas,  Eyre,  C.  J.  dia- 
sentiente. 

In  Wilkinson  v.  Frasier,  4  Esp.  182, 
it  was  held  that  an  agreement  to  divide 
the  produce  of  a  whaling  voyage  be- 
tween the  captain,  seamen,  and  owners, 
did  not  constitute  them  partners,  so  as 
to  prevent  the  seamen  from  recovering' 
their  share  in  an  action.  This  case 
goes  no  further  than  Dixon  v.  Cooper, 
since  the  seamen  would  have  been  en- 
titled, though  the  owners  might  have 
gained  no  profit  by  the  voyage.  In 
Mair  v.  Glenuie,  4  M.  &,  S.  240,  Lord 
Ellenborough  expressed  an  opinion,  that 
an  agreement  to  remunerate  a  captain 
with  one-jiflh  of  the  profits  of  ike  intend- 
ed voyage  on  the  ship  and  cargo  did  not 
constitute  him  a  partner.  But  it  was 
sufficient  for  the  decision  in  that  case  to 
hold,  that  it  did  not  constitute  him  a 
partner  in  the  ship  and  cargo,  so  as  to 
prevent  a  transferee  from  obtaining  such 
possession  of  it  as  would  prevent  it  from 
remaining  in  the  ordering  and  disposi- 
tion of  the  transferror,  who  afterwards 
became  bankrupt.  Wish  v.  Small,  1 
Campb.  331,  is  sometimes  cited  on  this 
subject,  hut  in  fact  bears  little,  if  at  all, 
upon  it.  There,  A.  depastured  B.'s  bul- 
locks, and  was  to  have  half  the  profit 
of  their  sale.  In  an  action  against  the 
vendee  by  B.  alone,  he  contended  that 
A.  was  a  partner,  and  should  have  been 
joined.  It  was  answered  that  A.  was 
not  a  partner  in  the  bullocks,  r*rnf>  -i 
*but  in  the  profits,  to  which  ■-  *^  J 
Thompson,  B.,  at  N.  P.,  and  the  court  in 
banc,  afterwards  assented.  In  that  case, 
therefore,  it  will  be  seen  that,  so  far 
from  the  distinction  between  an  agent 
and  a  partner  being  acted  upon,  a  part- 
nership was  admitted  to  exist  in  the 
profits. 

It  must  be  remarked,  that  in  Wilkin- 
son V.  P^asierthe  question  was  between 
the  seamen  and  the  captain,  not  between 
the  seamen  and  third  parties;  and  that 
neither  in  Benjamin  v.  Porteus,  Dixon 
V.  Cooper,  or  AJair  v.  Glennie,  was  the 
liability  of  an  agent,  receiving  part  of 
the  profits  as  his  remunoralion,  to  third 
parties,  at  all  in  question.  In  the  two 
former  cases  he  was  equally  interested 
in  the  result  of  the  cause,  whether  he 
were  a  factor  or  a  partner,  and,  if  con- 


728 


SMITHS  LEADING  CASES. 


sidered  a  factor,  would  be  rendered  com- 
petent only  by  an  exception    in  the  law 
of  evidence  introduced  for  general  con- 
venience, not  on  account  of  the  differ- 
ence between  the  liabilities  of  a  factor 
and  those  of  a  principal.     Now  it  seems 
very  reasonable  to  allow  persons  sharing 
in  the  profits  of  an  adventure  to  exclude, 
by  express  agreement,   the   relation  of 
partnership    from    arising     as   between 
themselves,   and    at  the   same   time    to 
prohibit   them  from   so  excluding   it  to 
third  persons  dealing   with  them;  for 
the  rights  and  liabilities  of  partners  in- 
ter se  have  been  created  by  the  law  for 
their    own    convenience,   and    quilibet 
potest  renunciare  jun  pro  se  introducto. 
But  to  allow  a  person  who  receives  part 
of  the  profits  to  shield   himself  from  the 
creditors  of  the  firm  under  the  plea  that 
he  receives   them  as  an  agent,  would 
militate  against  the  reason  given  by  C. 
J.  Eyre,  in  the  principal  case,  who  places 
the  liability    of  a   participtint   on    the 
ground  that,  by  taking  part  of  the  profits, 
he  takes  from  the  creditors  part  of  tiieir 
security. 

Thus,  as  we  have  already  seen,  per- 
sons who  participate,  even  as  principals, 
in  the  profits  of  an  adventure,  may,  by 
express  stipulation,  prevent  the  ordmary 
incidents  of  partnerships  from  arising  as 
between  themselves,  but  cannot  exempt 
themselves  from   any  tittle  of  the  usual 
responsibility  of  members  of  a    firm  to 
strangers.     For  instance,  in  the  princi- 
pal case,  the   Lord  Ch.  J.  intimates  his 
strong  opinion    that   the  Carvers  were 
not    partners  with   Geisler  as  between 
themselves,  though    they    were  so  as  to 
the  rest  of  the  world;  and   Abbott,  C. 
J.,   commenting  on  Waugh  v.   Carver, 
states  the  principle  of  it  to  be,  "  that  if 
two  houses  agree  that   each  shall  share 
with  the  other  tlie  money  received  in  a 
certain  part  of  the  business,  they  are,  ts 
to  such   part,    partners  as  to  those  who 
deal  with  them  therein,  though  they  may 
not   be    partners  inter  se."     This   dis- 
tinction was  also  expressly   recognized 
by    Lord   Ellenborough   in    Hesketh    v. 
Blanchard,  4  East,   143.     In  that  case, 
A.   having  neither    money    nor  credit, 
offered  B.   that  if  he  would  order  with 
him  certain  goods  to  be  shipped  as  an 
adventure,  if  any  profit  should  arise  B. 
should  have  half  for  his  trouble.     B. 
accordingly  ordered  the   goods  on  their 
joint  account,  and  paid  for  them  ;  and 
A.  having  died  without  coming  to  a  set- 
tlement, B.  was  held  entitled  to  recover 


such  payment  in  assumpsit  from  A.'s 
executors.  "  The  construction,"  said 
Lord  Ellenborough,  Ch.  J.,  "  taken  in 
Waugh  V.  Carver,  applies  in  this  case. 
Quoad  third  persons,  it  was  a  partnership, 
for  the  plaintiff  was  to  share  half  the 
profits ;  but  as  between  themselves  it 
was  only  an  agreement  for  so  nuich,  as  a 
compensation  for  the  plaintiff's  trouble, 
and  for  lending  Robertson  (the  deceased) 
his  credit."  {See  Bolton  v.  Puller,  1  B. 
&  P.  546. 

Upon  the  whole,  the  cases  justify  us 
in  concluding,  that  whenever  it  appears 
that  the  agreement  was  intended  by  the 
parties   themselves  as  one  of  agency  or 
service,  but  the  agent  or  servant  is  to  be 
remunerated  by  a  portion  of  the  profits, 
then  the  contract  would   be  considered 
OS  between  themselves  one   of  agency 
(See  Geddes  v.  Wallace,  2  Bligh,  270; 
Rex  V.  Hartley,  Russ.  &  R.  139  ;)  but, 
as  between  them  and  third  persons,  one 
of  partnership.     See  Smith  v.  Watson, 
2  B.  &  C.  407  ;  Ex  parte  Rowlandson,  1 
Rose,  91 ;  Green  v.  Beasley,  2  Bing.  N. 
C.    110;    Exparte    Langdale,    18    Ves. 
300.     But  that  if  the  agent  or  servant 
is  to  be  remunerated,  not  by  a  porlion 
of  the  profits,  but  as  in  Dry  v.  Boswell, 
Dixon  V.     Cooper,   and    Wilkinson   v. 
Frazier,  by  part  of  a  gross  fund  or  stock, 
which  is  not  altogether  composed  of  the 
profits,  the  contract,    even  as   against 
third  persons,  will  be   one  of  agency, 
although  that  fund  or  slock  may  include 
the  profits,  so  that  its*va!ue,  and  r:j<-r)-.-i 
the   quantum  of  the   agent's  re-  '-         ^ 
ward,    will    necessarily    fluctuate    with 
their  fluctuation.     There  is  a  third  case 
that,  viz.,  in  which  the  agent  or  servant, 
is  not  to  receive  a  part  of  the  profits  in 
specie,  but  a  sum  of  money  calculated 
in  proportion  to  a  given  quantum  of  the 
profits.     In  such  a  case,  Lord  Eldon  has 
expressed   his  opinion,    that  the    agent 
so  remunerated  would  not  be  a  partner, 
even  as  to  third  persons.     "It  is  clearly 
settled,"  said  his  lordship,  "in  Exparte 
Hamper,  17  Ves.  112,  though  I  regret 
it,  that  if  a  man  stipulates  that  he  shall 
have  as  the  reward   of  his  labour,  not  a 
specific   interest  in  the  business,  but  a 
given  sum  of  money,  even  in  proportion 
to  a  given  r/uantrim  of  the  profits,  that 
will  not  make  him  a  partner;  but  if  he 
agrees  for  a  part  of  the  profits  as  such, 
giving  him  a  right  to  an  account  tiiough 
liaving  no  property  in  the  capital,  he  is 
as  to  third  jier.fons   a  partner."     In  an- 
other part  of  tlie  same  case  he  says— 


W  A  U  G  a    V.     CARVER. 


729 


"  The  cases  have  gone  to  this  nicety, 
upon  a  distinction  so  lliin  tliat  I  cannot 
state  it  as  established  upon  due  conside- 
ration, that  if  a  trader  agree  to  pay 
another  person,  for  his  labour  in  the 
concern,  a  sum  of  money,  even  in  pro- 
portion to  the  profits  equal  to  a  cer- 
tain share,  tliat  will  not  make  him  a 
partner.  But  il"lie  has  a  specific  interest 
in  the  profits  themselves  he  is  a  part- 
ner." 17  Ves.  404.  See  E.xparte  Rovv- 
landson,  19  Ves.  4G1. 

In  Williingson  v.  Herring,  3  M.  &.  P. 
'SO,  some  of  tiie  Judges  of  the  Common 
Pleas  seem  to  have  thought  that  a  bill 
drawn  on  H.  and  Co.  by  a  person  who 
acted  as  ilieir  agent  abroad  in  a  concern 
in  which  lie  was  to  receive  lUUU/.  per 
annum  salary,  and  one-fifth  share  of  the 
profits,  could  not  be  considered  as  a  bill 
drawn  by  a  partner.  The  point,  however, 
was  not  decided,  as  it  appeared  clear 
that  he  had  authority  to  draw  the  bill, 
even  assuming  iiim  to  be  but  an  agent. 

With  respect  to  nominal  purtntrship  : 
— that  takes  place  where  a  person,  hav- 
ing no  real  interest  in  the  concern, 
allows  his  name  to  be  held  out  to  ihe 
world  as  that  of  a  partner,  in  which  case 
the  law  imposes  on  him  the  responsibi- 
lity of  one  to  persons  who  have  had  deal- 
ings with  the  firm  of  which  he  has  held 
himself  out  as  a  member.  (See  the 
judgment  of  the  Lord  Chief  Justice  in 
the  principal  case;  and  see  Cuidon  v. 
Robson,  2  Campb.  302.)  It  has,  as  we 
have  seen,  been  laid  down  in  Young  v. 
A.xlell,  cited  in  the  text,  that  it  makes 
no  dillerence  in  such  a  person's  liabilily 
that  the  party  seeking  to  charge  him  did 
not  know  at  the  time  when  he  gave 
credit  to  the  firm  that  he  he  had  so  held 
iiimself  out.  Rut  this  position  appears 
very  questionable;  tor  the  rule  whicli  nn- 
poseson  a  noiiiinul  partner,  the  responsi- 
bilities of  a  real  one,  is  framed  in  order 
to  prevent  those  persons  from,  being  de- 
frauded or  deceived,  who  may  deal  with 
the  firm  of  which  he  liolds  Jiimself  out 
as  a  member,  on  the  taithot'  his  apparent 
responsibility."^But  where  the  person 
dealing  wilh  the  firm  has  never  heard 
of  him  as  a  component  part  of  it,  that 
reason  no  longer  applies,  and  there  is  not 
wanting  authority  opposed  to  such  an 
extension  of  the  rule  respecting  a  nomi- 
nal partner's  liability.  "  If  It  could  be 
proved,"  said  Mr  J.  Parke,  "  that  the 
defendant  held  himself  out — not  to  the 
world,  tor  that  is  a  loose  expression — 
but  to   the  2)lainliff  himself,  or  under 


such  circumstances  of  publicity  as  to 
satisfy  a  jury  ttiat  the  plaintilf  knew  of 
it,  and  Leiievcd  him,  to  be  a  partner,  he 
would  be  liable."  Dickenson  v.  Valpy, 
10  13.  &  C.  140.  So  too  in  Sholt  v. 
Streatfield  and  another,  Moo.  &  Uob.  9, 
where  the  question  was  whether  Green 
was  liable  jointly  with  Streatfield,  a 
witness  proved  that  he  had  been  told  in 
Green's  presence  that  Green  had  be- 
come a  partner.  He  was  then  asked 
whether  he  had  repeated  tlie  informa- 
tion, on  which  Campbell  objected  that 
this  was  not  evidence,  unless  it  were 
shown  that  the  delendants,  or  one  of 
them,  were  present  when  it  was  report- 
ed ;  sed  per  Lord  Tenterden,  C.  J.,  "I 
think  it  is;  because  otherwise  it  will  be 
said  presently,  that  what  was  said  was 
confined  to  the  witness,  and  that  the 
plaintiff' could  not  have  acted  on  it.''  In 
Alder.-on  v.  Popes,  1  Campb.  404,  n.,  it 
was  iield,  that  a  man  could  not  be  charg- 
ed as  a  partner  by  one  who,  when  he 
contracted,  had  notice  that  he  was  but 
nominally  so.  The  reason  of  this  must 
have  been,  because  he  could  not  have 
been  deceived,  or  induced  to  deal  with 
the  firm,  by  any  reliance  on  the  nominal 
partner's  apparent  responsibility.  And 
the  same  reason  precisely  *ap-  r*cooi 
plies  whether   the  false  iinpres-  '  -I 

sions  on  the  customer's  mind  have  been 
put  an  end  to  by  a  notice,  or  whether,  in 
conse(iuence  of  his  ignorance  that  the 
nominal  partner's  name  has  been  used, 
no  false  impression  ever  existed  on  his 
mind  at  all.  ('See  Carter  v.  Whalley,  1 
R.  &  Adol.  IL)  However,  in  order  to 
fix  a  person  with  this  description  of  lia- 
bility, no  particular  mode  of  holding  him- 
self out  is  requisite.  If  he  do  acts,  no 
matter  of  what  kind,  suflicient  to  induce 
others  to  believe  him  a  partner,  he  will 
be  liable  as  such.  See  Spencer  v.  Bil- 
ling, ;j  Cainp.  aiO;  Parker  v.  Barker,  1 
B.  cV  B.  9,  3  Moore,  220.  But  a  man 
who  describes  himself  as  a  partner  with 
another  in  one  particular  business  does 
not  thereby  hold  himself  out  as  such  in 
any  other  business  which  that  other  may 
hai)pen  lo  profess.  De  Rerkom  v.  Smith, 
1  Esp.  29;  Ridgway  v.  Philip,  5  Tyrw. 
131.  Nor  is  a  person  liable  as  a  nomi- 
nal partner,  because  others,  without  his 
consent,  used  his  name  as  that  of  a  mem- 
ber of  their  firm,  even  although  he  may 
have  previou.-ly  belonged  to  it,  provided 
he  have  taken  the  proper  steps  to  notify 
his  retirement  JN'ewsome  v.  Coles,  2 
Campb.  017.     JN'or,  us  has  been  already 


730  SMITHS     LEADING     CASES. 

stated,  can  a  man  be  charged  as  a  mem-     Alderson  v.   Popes,  1  Campb.  404,    in 
ber  of  a  firm  by  one  who  had   expres^s     notis. 
notice    that  he  was    but  nominally  so. 


It  appears  to  have  been  held  in  the  earlier  cases  in  this  country,  that 
where  parties  embarked  in  a  transaction  of  any  sort,  although  the  funds  or 
materials  might  have  been  furnished  by  each  from  a  separate  and  individual 
source,  a  partnership  would  be  created  between  them,  if  the  products  of  the 
adventure  or  business,  taken  as  a  whole,  were  to  be  the  joint  property  of 
all.  In  such  a  case,  if  the  capital  originally  invested,  exceed  the  value  of 
the  ultimate  proceeds,  a  loss  will  fall  upon  the  parties  jointly  ;  if  an  opposite 
result  ensues,  there  will  be  a  joint  gain  ;  and  thus  is  created  a  community 
of  profit  and  loss,  which  was  held  to  create  a  partnership.  Cumpston  v. 
M'Nair,  1  Wendell,  462;  Musier  v.  Trumpbour,  5  Wend.  274.  Nor  did 
the  shortness  of  the  period  during  which  this  community  of  gain,  and  joint 
liability  to  loss  continued,  affect  the  conclusion  drawn  by  the  law  from  the 
relations  of  the  parties.  Thus  in  the  case  of  Sims  v.  Willing,  8  Sergeant 
&  Rawle,  103,  the  defendant  had  purchased  flour  with  his  own  funds,  and 
shipped  it  to  Lisbon  on  his  own  account,  using  as  a  cover,  the  name  of  H. 
T.  Sampayo,  a  merchant  residing  in  that  city.  The  rest  of  the  cargo  of  the 
vessel,  was  composed  of  other  and  distinct  flour,  owned  and  paid  for  by  H. 
T.  Sampayo,  and  by  his  agent  and  brother  F.  T.  Sampayo.  So  far  there  was 
nothing  to  constitute  a  partnership,  or  even  a  joint  property  in  the  cargo, 
during  the  passage  out,  although  with  a  view  to  avoid  capture,  there  were 
no  marks  on  any  of  the  barrels,  to  identify  them  as  belonging  to  the  defen- 
dant. But  agreeably  to  the  arrangement  between  the  shippers,  on  its 
arrival  at  Lisbon  the  flour  was  to  be  sold  ;  and  although  the  net  proceeds 
of  the  share  of  the  defendant  were  to  be  immediately  remitted  to  London, 
yet  the  court  were  of  opinion,  that  the  understanding  between  the  parties 
must  have  been,  that  the  sale  should  take  place  as  of  a  whole,  and  on  a  joint 
account,  so  that  any  mismanagement  of  the  business,  should  fall  as  much 
upon  the  Sampayos  as  Willing.  Any  other  construction,  in  the  absence  of 
a  specific  designation  of  the  respective  shares  of  each,  would  have  exposed 
the  latter,  without  defence,  to  the  consequence  of  every  mismanagement 
committed  by  the  former.  Of  course  the  joint  ownership  of  the  proceeds, 
created  during  its  continuance,  a  community  of  profit  and  loss,  as  to  the 
whole  adventure  ;  and  the  court  therefore  held,  that  a  partnership  re- 
sulted from  this,  although  the  parties  had  intended  that  such  joint  owner- 
ship should  be  immediately  severed,  by  an  express  appropriation  of  the 
defendant's  share  to  him.  As  a  consequence,  judgment  was  given  in  favour 
of  the  plaintiff,  for  the  amount  of  the  general  average  which  had  attached 
to  the  whole  cargo  on  the  voyage  out.  It  appears  very  questionable  whether, 
in  this  case,  there  was  any  joint  ownership  in  the  flour  while  it  remained  in 
specie  ;  and  whether  the  sole  ground  of  the  partnerstip,  was  not  merely  the 
joint  character  of  the  intended  sale,  which  created  a  community  of  interest 
in  the  profit  and  loss. 

In  the  New  York  case  of  Post  v.  Kimberley,  the  circumstances  were 


W  A  U  G  H     V.     C  AR  VE  R.  731 

similar  to  those  of  the  case  last  stated,  and  the  court  seem  to  have  enter- 
tained the  opinion,  that  on  the  whole,  a  partnership  must  be  presumed 
to  arise,  whenever  the  parties  to  a  transaction,  intended  a  joint  interest  in 
the  proceeds  of  a  sale,  although  there  may  previously  have  been  a  separate 
ownership  of  the  goods  destined  to  be  sold.  9  Johns.  488.  491.  495.  It 
may  however,  be  observed,  that  in  the  case  of  Jackson  v.  Robinson,  3  Mason, 
141,  Story,  J.  appears  to  have  been  of  opinion,  that  where  there  was  a 
separate  ownership  of  the  cargo,  instructions  to  the  master  to  effect  a  joint 
sale  of  the  whole,  would  not  create  a  partnership  as  to  any  part  of  the  trans- 
action. The  only  feature  of  difference  between  this  case  and  that  of  Sims 
V.  Willing,  would  seem  to  be,  that  in  the  latter,  the  sale  was  to  be  made  by 
one  of  the  part-owners,  in  the  former  by  the  agent  of  all.  From  this  circum- 
stance, it  might  perhaps  be  more  strongly  argued  in  one  case  than  in  the 
other,  that  a  partnership  must  have  been  intended,  as  a  protection  against 
fraud.  A  similar  decision  to  that  of  Jackson  v.  Robinson,  was  made  by  the 
Supreme  Court  of  Massachusetts,  in  the  case  of  Thorndike  v.  Le  Wolf,  G 
Pick.  125. 

Prior  to  the  decision  of  Sims  v.  Willing,  the  principle  involved  in  that 
case,  and  declared  in  Waugh  v.  Carver,  had  been  recognised  and  applied 
by  the  Supreme  Court  of  Pennsylvania,  in  the  case  of  Purviance  v.  Clintee, 
6  Sergeant  &  Rawle,  261.  It  was  there  held  by  Tilghman,  C.  J.,  that 
where  a  party  who  had  aided  in  conducting  a  business,  was  to  receive  one- 
half  the  profits,  as  a  compensation  for  his  services,  he  was  to  be  considered 
as  a  partner  of  his  employer,  and  liable  for  his  partnership  debts.  The 
same  general  doctrine  would  appear  to  have  been  very  genemlly  adopted  in 
the  United  Slates.  Dobb  v.  Ilalsey,  16  Johns.  Rep.  34;  Weldon  v.  Sher- 
burne, 15  Johns.  Rep.  409;  Felichy  v.  Hamilton,  1  W.  C.  C.  R.  492; 
Scott  V,  Colmisnil,  7  J.  J.  Marsh.  416;  Brown  v.  Robbins,  3  New  Hamp- 
shire, 34  ;  Taylor  v.  Terme,  3  Har.  &  Johns.  505. 

But  it  was  said  by  Huston,  J.,  in  the  recent  case  of  Heckert  v.  Fegely 
6  W.  &  S.  139.  143,  that  it  was  at  present  the  disposition  of  the  courts  to, 
look  less  to  general  rules,  and  more  to  particular  circumstances,  for  the 
purpose  of  ascertaining  the  intention  and  relative  position  of  the  parties  to 
commercial  contracts,  and  the  construction  to  be  put  upon  their  actions  ; 
and  it  was  declared  that  the  rule  that  all  who  share  in  the  profits  of 
a  business  are  to  be  regarded  as  partners,  is  now  subject  to  many  excep- 
tions. 

It  is  in  fact,  obvious,  that  where  it  appears  not  to  have  been  the  intention 
of  the  parties  concerned  in  a  business  transaction,  to  render  themselves 
mutually  liable  for  each  other's  defaults  or  contracts,  such  liability  can  with 
justice  be  imposed  upon  them  only  as  the  result  of  some  legal  rule  or  prin- 
ple,  which  will  apply  to  the  circumstances  of  the  case,  irrespectively  of  the 
design  and  objects  of  the  persons  to  be  affected  by  its  operation.  When 
regarded  from  this  point  of  view,  the  doctrine  that  the  right  to  share  in  the 
profits  of  a  business,  necessari!}'-  rendered  the  person  thus  entitled  answer- 
able for  all  the  liabilities  incurred  by  others  for  the  purpose  of  carrying  it 
on,  on  the  ground  that  he  must  take  the  burden  with  the  benefit,»did  not 
appear  very  easily  susceptible  of  being  sustained  in  theory,  and  in  practice 
was  found  to  result  in  hardship,  and  sometimes  in  injustice.  On  the  other 
hand,  there  could  be  no  doubt,  that  in  this,  as  in  every  other  instance,  tho 


/ 


732  SMITHS     LEADING     CASES. 

law  would  attach  its  own  meaning  to  the  acts  which  it  was  called  upon  to 
construe,  and  whatever  might  be  the  design  of  the  persons  concerned,  would 
in  no  case  permit  tlie  creation  either  of  rights  or  interests,  unaccompanied 
by  the  legal  incidents  appertaining  thereto,  and  necessary  for  the  well- 
being  of  society,  and  the  general  preservation  of  justice. 

In  their  relations  to  each  other,  partners  have  a  great  and  manifest 
advantage  over  the  rest  of  the  world.  Not  only  are  they  joint  tenants  of  all 
the  partnership  propertj'-,  but  they  have,  under  the  principles  now  recog- 
nized both  at  law  and  in  equity,  a  lien  upon  the  whole  for  the  balance  of 
the  partnership  account  between  themselves.  This  necessarily  gives  them 
a  specific  security  to  the  amount  of  the  whole  of  the  goods  of  the  firm,  for 
the  debts  which  may  arise  as  between  themselves,  out  of  their  joint  trans- 
actions, to  the  exclusion  of  all  the  individual  creditors  of  the  other  members 
of  the  partnership.  Garbett  v.  Veale,  5  Q,.  B.  408;  Gibson  v.  Stevens,  7 
New  Hampshire,  352.  This  advantage  of  making  the  debts  due  by  one 
partner  to  another  on  parnership  account,  a  specific  lien  instead  of  being  a 
mere  right  of  personal  recourse  against  the  debtor,  the  law  will  not  permit 
to  exist,  for  the  reason  hereafter  given,  without  coupling  jt  with  the  disad- 
vantage of  being  personally  liable  for  all  debts  contracted  on  account  of  the 
firm. 

In  all  cases  therefore,  where,  as  between  two  persons  concerned  in  a 
joint  transaction,  or  series  of  transactions,  it  appears  that  the  intention 
was  to  create  a  joint  ownership  in  the  proceeds  of  the  business,  or 
in  the  property  employed  in  carrying  it  on,  accompanied  by  a  lien  for 
the  whole  amount  for  which  either  might  become  indebted  to  the  other, 
in  the  course  of  their  mutual  relations,  they  will  be  held  to  be  partners. 
In  any  other  aspect  they  would  secure  the  advantage  of  being  enabled  to 
appropriate  the  whole  of  the  proceeds  of  the  undertaking  to  the  satisfaction 
of  debts  between  themselves,  to  the  complete  exclusion  of  all  other  creditors  ; 
and  even  of  those  whose  money  or  labour  had  especially  contributed  to  the 
creation  of  a  fund,  in  the  benefits  of  which  they  were  thus  denied  the  power 
of  participation.  To  prevent  this  inconvenience,  the  law  attaches  to  the 
joint  ownership  and  lien,  thus  covering  the  whole  adventure  for  the  benefit 
of  the  adventurers  as  between  themselves,  a  liability  for  all  debts  which 
may  have  been  contracted  by  any  of  them  in  the  course  of  its  prosecution. 

In  the  recent  case  of  Denny  v.  Cabot,  6  Metcalf,  92,  this  principle  was 
stated  by  Wilde,  J.,  in  giving  the  opinion  of  the  court  in  the  following 
language.  <«  If,"  it  was  said  "  the  defendant  had  stipulated  for  a  share  in 
the  profits  (whether  gross  or  net  profits)  so  as  to  entitle  him  to  an  account, 
and  to  give  him  a  specific  lien,  or  a  preference  in  payment,  over  other 
creditors,  and  giving  him  the  full  benefit  of  the  profits  of  the  business,  with- 
out any  corresponding  risk  in  case  of  loss  ;  justice  to  the  other  creditors 
would  seem  to  require  that  he  should  be  holden  to  be  liable  to  third  persons, 
as  a  partner.  But  where  a  party  is  to  receive  a  compensation  for  his 
labour,  in  proportion  to  the  profits  of  the  business,  without  having  any 
specific  lien  upon  such  profits,  to  the  exclusion  of  other  creditors,  there  seems 
to  be  no'Teason  for  holding  him  liable  as  a  partner,  even  to  third  persons."  In 
other  words,  as,  under  these  circumstances,  the  defendant  stood  towards  the 
business  in  which  it  was  sought  to  render  him  liable  as  partner,  merely  in 
the  same  relation  with  the  rest  of  the  world,  and  although  entitled  to  enforce 


AV  A  U  a  H     V.     CARVER.  733 

his  contract  for  a  share  of  the  profits,  would  have  been  obliged  to  come  in 
for  the  purpose  of  obtaining  satisfaction  with  the  rest  of  the  creditors,  it  was 
held  that  the  reason  did  not  exist  for  making  him  personally  responsible  to 
them,  which  would  have  arisen  had  he  been  entitled  to  take  all  the  pro- 
perty employed  in  the  business  for  the  purpose  of  securing  himself,  except 
in  so  far  as  this  course  might  be  prevented  by  treating  him  as  a  partner, 
and  thus  letting  in  other  claimants  at  once  against  his  interest  in  the  firm, 
and  his  individual  property. 

In  the  case  actually  before  the  court,  it  appeared  that  the  defendants  had 
entered  into  a  contract  to  furnish  slock  to  one  Cooper,  for  the  purpose  of 
being  manufactured  into  satinets,  for  which  he  was  to  be  paid  at  certain 
fixed  rates,  and  was  to  receive  in  addition  one  third  of  the  proceeds  remain- 
ing, after  all  necessary  deductions  from  the  gross  amount  of  sales  which 
were  to  be  effected  by  them.  Under  these  circumstances  it  was  held,  that 
Cooper  had  no  lien  on  the  property  or  profits,  so  as  to  give  him  a  prefer- 
ence over  other  creditors,  and  that  there  was  no  ground  for  presuming  that 
the  defendants,  intended  either  to  create  a  partnership  in  point  of  fact,  or  to 
produce  such  a  state  of  things,  that  a  partnership  would  necessarily  arise, 
irrespectively  of  their  intention,  by  implication  of  law. 

The  previous  decisions  of  Turner  v.  Bissell,  14  Pick.  192,  and  Loomis 
V.  Marshall,  12  Connecticut,  69,  which  were  cited  with  approbation  in 
Denny  v.  Cabot,  proceeded  upon  a  state  of  facts  nearly  similar,  and  were 
decided  in  the  same  manner.  In  both,  wool  was  furnished  by  the  defend- 
ants to  a  third  person,  to  be  worked  up  into  cloth  at  a  rate  of  compensation 
which  was  virtually  dependent  on  the  profits  of  the  business  ;  and  in  both 
they  were  held  not  to  be  partners  with  him,  nor  liable  for  the  debts  which 
he  nn'ght  contract  in  the  course  of  conducting  the  manufacture. 

The  same  view  of  the  law  had  also  been  taken  in  Cutler  v.  Windsor,  6 
Pick.  335,  in  which  an  agreement  had  been  entered  into  between  the  owner 
and  the  master  of  a  vessel,  that  both  should  contribute  to  the  charge  of 
working  her,  and  employing  her  in  the  transportation  of  merchandize  and 
passengers;  the  gross  proceeds  of  the  voyage  to  be  divided  between  them. 
It  was  decided  that  this  agrement  amounted  only  to  the  ordinary  case  of  a 
charter-party,  in  which  the  owner  of  the  vessel  is  to  be  paid  by  a  portion  of 
the  earnings.  If  any  doubt  exists  as  to  this  decision,  it  turns  upon  the 
point,  whether  it  was  clearly  understood,  that  the  owner  had  no  specific 
lien  upon  the  fund  received  for  freight  or  passage-money  by  the  master,  and 
that  he  was  to  come  in  on  the  same  foolitng  with  other  creditors,  if  the  latter 
had  become  insolvent. 

But  no  doubt  can  be  entertained  with  regard  to  the  propriety  of  another 
decision  in  the  same  volume  of  Reports.  An  agreement  had  been  entered 
into  between  Sargent  and  Edwards,  to  furnish  materials  for  a  vessel  in  certain 
ratios,  for  building  a  vessel,  of  which  when  completed,  Edwards  was  to  own 
one-fourth,  and  S.irgent  the  residue.  Under  these  circumstances,  Edwards 
became  largely  indebted  to  Sargent  for  advances  made  by  the  latter,  beyond 
his  stipulated  proportion  of  the  expenses  ;  and  an  attachment  having  been 
laid  upon  the  share  of  the  vessel  belonging  to  the  former  by  one  of  his  cred- 
itors, the  latter  attempted  to  set  up  a  lien  for  the  balance  of  accounts 
between  them,  for  the  purpose  of  obtaining  a  preference  for  his  own  claim. 
But  this  was  denied  by  the  court,  who  held  that,  as  the  facts  did  not  show 


734  smith's   leading   cases. 

a  partnership,  no  such  lien  could  exist.  Murrill  v.  Bartlett,  6  Pick.  416. 
In  this  instance,  it  may  be  observed,  that  the  loss  fell  upon  the  party  con- 
cerned precisely,  because  he  was  not  a  partner  ;  but  if  the  court,  without 
giving  him  that  character,  had  allowed  him  to  sustain  the  specific  lien 
which  he  claimed  to  possess,  the  case  would  have  presented  the  exact 
feature  of  injustice  which  the  doctrine  of  constructive  partnership  is  meant 
to  prevent,  that  of  enabling  one  of  the  parties  to  pay  his  own  debt  with 
property  which  may  have  been  the  product  of  work  or  materials  furnished 
by  others,  who  would  be  excluded  from  all  possibility  of  getting  at  it  for  the 
purpose  of  satisfying  the  very  demands  which  had  thus  arisen. 

The  doctrine  advanced  in  these  cases,  in  Massachusetts,  is  fully  sustained 
by  the  decision  recently  made  in  Heckert  v.  Fegely,  6  W.  &  S.  143,  by 
the  S.  C.  of  Pennsylvania.  In  this  case  both  the  parties  as  between  whom 
the  question  of  partnership  arose,  were  to  contribute  to  the  expense  of 
obtaining  coal  from  certain  mines,  and  conveying  it  to  a  particular  point ; 
and  when  there,  it  was  to  be  sold  by  one  of  them,  and  the  proceeds  divided 
between  himself  and  the  others  in  a  certain  ratio  fixed  by  the  agreement. 
The  relation  thus  created  was  held  not  to  amount  to  a  partnership,  and  no 
doubt  correctly,  if  it  be  supposed  that  the  parties  by  whom  the  coal  was  to 
be  mined,  were  not  to  be  entitled  to  a  lien  upon  the  proceeds  of  the  sales  in 
the  hands  of  the  others,  and  that  in  the  event  of  insolvency,  they  were  to 
come  in  on  the  same  footing  with  all  other  creditors. 

Upon  the  same  distinction  as  that  above  illustrated,  it  has  been  repeatedly 
determined,  that  a  person  employed  as  an  agent  or  servant  in  and  about 
the  business  of  a  firm,  will  not  be  considered  as  a  partner,  merely  because 
his  compensation  is  to  be  paid  out  of  a  certain  share  of  the  profits,  instead 
of  being  estimated  by  some  other  standard,  or  at  a  fixed  sum.  In  such 
cases,  he  will  merely  be  entitled  to  his  personal  recourse  against  those  by 
whom  he  is  employed,  and  will  not  have  a  lien  for  the  balance  of  the  stock 
in  trade  held  by  them,  nor  be  entitled  to  any  preference  as  against  their 
individual  creditors.  No  sufficient  reason  can  exist  for  considering  him 
as  a  partner.  That  character  therefore  will  not  be  imposed  upon  him, 
unless  such  appears  to  have  been  the  meaning  of  the  agreement  under 
which  he  has  acted.  Miller  v.  Bartlett,  15  S.  &  R.  137  ;  Ross  v.  Drinker, 
2  Hall,  215.  The  soundness  of  the  reasoning  on  which  this  course  of  decision 
proceeded  was  recognized  by  Chancellor  Walworth,  in  delivering  his  opinion 
in  Champion  v.  Bostwick,  18  Wend.  175  ;  and  the  point  was  determined  in 
accordance  with  the  views  thus  expressed  in  Vanderburgh  v.  Hull,  20  Wend. 
70  ;  and  has  recently  been  declared  to  be  settled  law  in  the  state  of  New 
York.  Buckle  v.  Eckart,  1  Denio,  337.  The  point  was  decided  in  the 
same  way  by  the  Supreme  Court  of  Pennsylvania,  in  the  recent  case  of 
Dunham  v.  Rogers,  1  Barr,  255. 

On  the  other  hand,  there  can  be  no  doubt  that  wherever  it  can  be  made 
to  appear  that  a  party  who  has  furnished  funds  to  be  embarked  in  a  joint 
adventure  with  another,  could  not  have  meant  to  look  solely  to  the  personal 
responsibility  of  the  latter,  and  be  presumed  to  have  been  intended  for  their 
own  protection,  to  create  a  joint  ownership  of  the  resulting  fund  or  property 
coupled  with  a  lien  to  the  extent  of  the  balance  of  accounts  between  them, 
the  character  of  a  partnership  will  be  affixed  to  the  transaction,  for  the  pur- 
pose of  protecting  third  persons,  Avhose  rights  might  otherwise  be  wholly 


W  A  U  G  H     V.    CARVER.  735 

defeated.  Baring  v.  Crafts,  9  Metcalf,  380;  Goddard  v,  Pratt,  16  Pick. 
402;  Champion  v.  Bostwick,  18  Wend.  175;  Everett  v.  Chapman,  6 
Conn.  347.  In  Loomis  v.  Marshall,  tlxis  last  case  was  treated  by  the  court, 
as  proceeding  on  the  ground,  that  although  the  sales  were  to  be  made  by 
the  partners  severally ;  yet  the  profit  and  loss  were  to  be  shared  by  all,  and 
that  for  the  purpose  of  securing  this  result,  a  specific  lien  must  have  been 
intended  upon  the  proceeds  in  ihe  hands  of  each.  And  it  is  of  course  ob- 
vious, that  if  persons  have  held  themselves  out  to  the  world  as  partners,  they 
will  be  affected  with  all  the  consequences  of  that  relation,  whatever  may  be 
the  actual  state  of  things,  or  the  terms  of  the  contract  between  them  ;  as  to 
which,  under  such  circumstances,  the  court  is  not  bound  to  inquire.  Stearns 
V.  Haven,  14  Vermont,  540. 

It  would  appear  that  evidence  of  a  general  reputation,  that  certain 
persons  are  partners,  is  not  in  itself  admissible,  for  the  purpose  of  proving 
the  existence  of  a  partnership  between  them,  unless  shown  to  have -been 
brought  to  their  knowledge,  and  confirmed  by  their  assent.  HoUiday  v. 
M'Dougal,  20  Wend.  81  ;  Brown  v.  Crandall,  11  Connecticut,  92  ;  Boyden 
v.  Taylor,  2  Harris  &  Johnson,  396;  although  it  may  perhaps  be  received 
in  corroboration  of  other  proof;  Allen  v.  Rostain,  11  S.  &  R.  362;  AVhit- 
ney  v.  Sterling,  14  Johnson,  215.  And  where  the  existence  of  a  fact  is 
established,  whether  in  relation  to  a  partnership,  or  any  thing  else,  evidence 
of  its  general  notoriety  may  be  no  doubt  received  on  a  question  of  notice. 
In  Carter  v.  Whalley,  1  B.  &  Ad.  1 1  ;  and  in  Bernard  v.  Torrence,  5  Gill  & 
Johnson,  383,  the  defendants,  who  had  been  dormant  partners,  but  had  with- 
drawn from  the  firm  before  the  transactions  on  wliicli  suit  was  brought,  were 
shown  never  to  have  held  themsefves  out  as  such,  and  the  absence  of  all 
public  knowledge  that  they  had  accepted  this  relation,  was  held  to  have  ren- 
dered unnecessary  any  notice  of  their  withdrawal.  And  there  can  be  no 
doubt  that  evidence  of  a  general  and  public  knowledge  that  a  dissolution  of 
partnership  has  occurred,  is  competent  for  the  purpose  of  bringing  notice  of 
the  fact  home  to  the  plaintiff^  Such,  indeed,  would  seem  to  be  the  legal 
effect  of  a  written  advertisement  of  dissolution  of  a  partnership,  published 
in  a  newspaper,  not  shown  to  be  taken  by  the  party  against  whom  notice  is 
to  be  established  ;  which  in  Mowatt  v.  Howland,  3  Day,  353,  was  held  suffi- 
cient for  that  purpose,  as  to  all  persons  not  shown  to  have  been  actual  business 
correspondents  of  the  firm.  In  the  recent  case  of  Crellin  v.  Calvert,  14  M. 
&  W.  11,  it  appeared  that  the  defendant  was  a  partner  in  a  banking  institu- 
tion ;  and  the  evidence  was  that  the  directors  had  established  a  bank  in 
another  town,  professing  to  be  a  branch  of  that  to  which  he  belonged  ;  but  it 
was  not  shown  that  they  had  fulfilled  the  conditions  attached  to  a  power  given 
for  that  purpose,  in  the  deed  of  settlement  of  the  copartnership.  It  was,  how- 
ver,  determined,  that  the  defendant  must  be  presumed  to  have  heard,  and  by 
not  dissenting,  tacitly  to  have  ratified  a  public  and  notorious  fact  of  this  nature, 
withr  egard  to  which  he  was  personally  interested  ;  and  that  the  evidence  was 
sufficient  to  sustain  a  verdict  finding  that  he  was  a  member  of  both  the  firms. 

The  liabilities  and  rights  given  or  imposed  by  the  existence  of  a  partner- 
ship, never  arise  before  the  subject-matter  of  the  partnership  has  been 
obtained,  and  the  business  of  the  firm  has  actually  commenced  ;  and 
this  will  be  the  case,  even  where  the  parties  have  entered  into  regular 
articles  of  co-partnership.     Thus  in  Murray  v.  Richards,  1  Wendell,  03,  it 


736  smith's    leading   cases. 

was  held,  that  an  action  might  be  maintained  by  the  plaintiff,  to  recover 
advances  paid  to  the  defendant,  under  articles  of  partnership,  signed  by  both, 
for  the  purchase  of  a  steam-vessel,  to  be  run  for  the  joint  benefit  of  the  part- 
ners. The  court  held  that  the  partnership  did  not  commence,  until  by  the 
purchase  of  the  vessel,  the  business  for  which  h  was  formed  was  in  readi- 
ness to  be  carried  into  operation;  and  consequently,  as  the  undertaking  had 
been  abandoned  by  all  the  parties  concerned,  there  was  no  objection  to  a 
recovery  by  the  plaintiff.  The  principle  here  recognised,  in  a  suit  between 
the  parties  themselves,  had  been  previously  applied  as  it  regarded  third 
persons,  both  in  England  and  New  York.  Saville  v.  Robinson,  4  Term, 
720  ;  Post  V.  Kimberly,  9  Johns.  488.  It  was  held  in  both  these  cases, 
that  no  liability  attached  to  one  member  of  a  firm,  for  advances  made  to 
another,  to  enable  him  to  procure  that,  which  was  to  be  his  individual  con- 
tribution to  the  partnership  sto:!c.  The  same  point  was  determined  in  the 
recent  case  of  Heckert  v.  Feg-  'y,  6  VV.  &,  S.  139.  144,  where  it  was  held 
to  be  clear,  that  if  two  persons  agree  to  become  partners,  and  one  of  them 
borrow  money  to  make  up  his  quota  of  the  capital,  no  responsibility  for  the 
debt  will  attach  as  against  the  firm.  The  case  of  Wilson  v.  Whitehead,  10 
M.  &  W.  503,  is  to  the  same  effl^ct  ;  and  the  reason  of  the  distinction  was 
there  said  to  be  the  nature  of  the  authority  given  by  an  agreement  to  form 
a  partnership,  which  does  not  cover  advances  made  to  its  members  for  the 
purpose  of  enabling  them  to  fulfil  the  engagements  by  which  they  are  sever- 
ally bound  to  each  other. 

In  order  to  avoid  introducing  a  different  rule  of  law,  the  relations  of  two 
parties  jointly  engaged  in  traile,  towards  each  other,  and  towards  third  per- 
sons, will  be  judged  by  the  same  lest,  in  the  absence  of  any  evidence  show- 
ing an  agreement  or  understanding  to  the  contrary.  Where  however,  there 
are  express  stipulations,  that  a  partnership  shall  not  exist,  or  where  it  has 
obviously  been  the  intent  of  the  parties  not  to  create  one,  none  will  be 
implied  as  between  themselves,  although  the  legal  implication,  as  it  respects 
third  persons,  strangers  in  interest  to  the  agreement,  will  continue  undis- 
turbed. Gill  V.  Kuhn,  6  Sergeant  &  Rawle,  338  ;  Jordan  v.  Wilkins,  3 
Wash.  C.  C.  R.  115.  When  however,  third  persons  are  aware,  that  by  the 
understanding  between  parlies  so  circumstanced,  no  partnership  is  intended 
to  exist,  they  will  be  as  much  bound  by  such  understanding,  as  the  parties 
themselves.  Baile)''  v.  Clark,  6  Pick.  374.  And  on  the  other  hand,  what- 
ever the  original  stipulations  against  a  partnership  under  which  a  business 
has  commenced,  they  may  be  waived  by  the  subsequent  conduct  of  the  par- 
ties, even  as  against  third  persons,  aware  of  their  existence.  Stearns  v. 
Haven,  14  Vt.  540. 

H. 


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